Austin v The King

[2023] SASCA 64

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

AUSTIN v THE KING

[2023] SASCA 64

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Auxiliary Justice Dalton)

15 June 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Application for permission to appeal against sentence.

The applicant was convicted of four offences on his own pleas of guilty in connection with the possession of materials relating to explosives as well as threatening to kill or endanger life.  The applicant was sentenced to imprisonment for six years and three months with a non-parole period of three years and six months fixed. 

The applicant’s grounds of appeal was that the sentence was manifestly excessive having regard to the applicant’s age, proven ability to rehabilitate himself and his poor state of health. 

HELD (Dalton AJA, with David and Lovell JJA agreeing) dismissing the application for an extension of time to appeal and refusing permission to appeal:

1.The remarks of the sentencing judge demonstrate that the matters said to give rise to the complaint of manifest excess were very much in the forefront of the sentencing judge’s mind.

2.The sentence is not manifestly excessive when the seriousness of the applicant’s offending and criminal history are considered.

Criminal Law Consolidation Act 1935 (SA) ss 19, 83O, 83N; Joint Criminal Rules 2022 (SA) r 185.1; Sentencing Act 2017 (SA) s 54; Summary Offences Act 1953 (SA) s 37(1)(b), referred to.
Gikas v Police [1999] SASC 139; House v The King (1936) 55 CLR 499; R v Bugmy (2013) 249 CLR 571; R v Fyfe [2004] SASC 391, considered.

AUSTIN v THE KING
[2023] SASCA 64

Court of Appeal – Criminal:  Lovell and David JJA and Dalton AJA

1. LOVELL JA:  I agree with reasons of Dalton AJA and the orders she proposes.

2. DAVID JA:  I agree with the orders proposed by Dalton AJA and with her reasons.

3. DALTON AJA:  The applicant requires permission to appeal and, in addition, seeks leave to appeal against sentence out of time.  The Crown opposes an extension of time, and opposes permission to appeal.  The Crown has filed a cross-appeal which it only seeks to prosecute if leave is given to the applicant.  In my view, the application to extend time in which to appeal ought to be refused. 

4. Pursuant to r 185.1(1) of the Joint Criminal Rules 2022 (SA), an appeal must be instituted within 21 days after the decision which is the subject of the appeal.  Here, the applicant was sentenced on 18 February 2022 but did not file a Notice of Appeal until 6 January 2023.  That is, the applicant is approximately 11 months out of time. 

5. The Crown relies upon the principles in Gikas v Police as relevant to a determination of whether an extension of time ought be granted:[1]

   In my opinion no party is entitled to an extension of time within which to appeal unless that party explains, with appropriate frankness and candour, the reasons why the party did not observe the Rules of Court and in particular the time limits imposed by those rules: Hall v Nominal Defendant (1966) 117 CLR 423 at 435. The longer the delay the better the reasons need to be to explain that delay; R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64; Armstrong v R (1983) 35 SASR 356.

   A relatively short delay of a few days will ordinarily, even with a perfunctory explanation, allow for an extension of time for the institution of an appeal. However, where the delay is substantial the application for an extension of time needs to be supported by a full disclosure of the reasons for the plaintiff's failure to comply with the time limits.

   When there has been a substantial delay the applicant will be entitled to an extension of time if the applicant can point to a satisfactory explanation for that delay.

   If there is no satisfactory explanation for the delay then an applicant may still be entitled to an extension of time if applicant can show that the absence of an extension of time might lead to a miscarriage of justice.

   [1] [1999] SASC 139, [25]-[28], per Lander J.

6. There must be some consideration of the merits of the proposed appeal in determining whether an extension of time should be granted.[2]

   [2]     R v Fyfe [2004] SASC 391, [10] (Doyle CJ, with whom Perry and Vanstone JJ agreed).

   The offending

7. The applicant was convicted of four offences on his own pleas of guilty:

   (a)Possessing or taking part in a process of manufacturing an explosive device (maximum penalty 7 years’ imprisonment).[3]

   (b)Possessing instructions on how to make an explosive device (maximum penalty 7 years’ imprisonment).[4]

   (c)Threatening to kill or endanger life (maximum penalty 10 years’ imprisonment).[5]

   (d)Possessing extremist material (maximum penalty fine of $10,000 or imprisonment for 2 years).[6]

   [3]     Criminal Law Consolidation Act 1935 (SA) (CLCA), s 83N(3).

   [4] CLCA, s 83O(1)(c).

   [5] CLCA, s 19(1).

   [6]     Summary Offences Act 1953 (SA), s 37(1)(b).

8. The applicant is an indigenous man, and at the time of the offending he was 67.  On arrest, he was taken to hospital and was subject of psychiatric observation as an inpatient.  At a later time, he was the subject of a psychiatric report prepared for use in relation to this offending.[7]  The report is to the effect that applicant did not have any mental illness, but had an Antisocial Personality Disorder. 

   [7]     Report of Dr Raeside, Forensic Psychiatrist, 27 January 2021.

9. The offending came about because the applicant believed he was being harassed and persecuted by a group of young people, on some versions for eight to 10 years by a group of between five and 20 people.  His complaints against these people included that they physically attacked him and that they put graffiti on his home.  At one stage he made a complaint to police about this behaviour and was disappointed by a perceived failure of police to do anything about his complaint.  The psychiatric report was to the effect that the applicant’s longstanding Antisocial Personality Disorder meant that he failed to tolerate “some degree of perceived/actual mistreatment in the community”.  His offending was in retaliation or revenge for what he perceived as his mistreatment. 

10. The applicant made a bomb threat directed at students of a particular school.  This was posted on Facebook under a false name.  The parent of a child at that school notified police.  Police obtained a search warrant and found quite considerable amounts of equipment and chemicals at the applicant’s house (possessing or taking part in a process of manufacturing an explosive device).  Also in his house were numerous books and other paper documents containing instructions about making explosive devices (possessing instructions on how to make an explosive device) and electronic material published by al-Qaeda (possessing extremist material).  There was no evidence that the applicant was interested in the al-Qaeda philosophy, but the publications included bomb making techniques. 

11. The Facebook post included a photograph of the relevant school grounds, and some very unpleasant threats directed at students of the school.  The post said that the applicant could find the students anywhere, and that wherever they were, he could get to.  It said that he would find their addresses and that he would hurt them.  It warned them to be careful what they touched and opened because “it will be the last thing you ever do”.  It said that the applicant did not care how old the students were, or if their families were hurt.  This post was the basis of the most serious charge, threatening to kill or endanger life. 

    The applicant’s circumstances and criminal history

12. The applicant had a prejudicial childhood due to mental health issues from which his father suffered, and physical health issues which affected his mother.  He was subject to violence, and periods where he lived away from his family home.  He was sexually abused on two occasions.  He had independent health problems due to a chromosomal irregularity which caused him ill‑health throughout his childhood.  He completed school only to Year 7.  Although he began work at age 16, his employment did not last long, and he has no real work history.  He has no history of any lasting relationships of any kind; he was estranged from his family of origin at a young age.

13. Against this background he began offending at age 18 and he has a significant criminal history which saw him imprisoned for much of the 20 years between 1970 and 1990.  Having said that, to his credit, he reformed himself and had not been in prison between 1990 and this offending.  During this time, he did commit certain relatively minor criminal offences for which he was not imprisoned.  At the time of the offending, he was living independently with some carer support.  Due to his health conditions, this was difficult. 

14. Even though it was dated, the applicant’s criminal history was particularly significant on his sentence because he had convictions for serious offending related to explosives.  These are summarised in the Crown’s submissions on this appeal as follows:

    a. 1984 - 2 counts of Unlawful Imprisonment – the applicant attended Murray Bridge High School armed with material capable of being used as a homemade bomb and took two school students hostage for a short period of time. This offending was motivated by the applicant’s effort to raise concerns about prison conditions;

    b. 1984 – Induce False Belief and Sending Noxious Material Through Mail– the applicant devised and sent a postal article to a prison officer with the intention of inducing a belief that the article contained an explosive or dangerous subject. The article posted had the appearance of an explosive device;

    c. 1987 – Demanding with Menaces – the applicant wrote a letter that threatened an attack would be made on the Pope during his visit in 1986, if certain demands were not met. The applicant threatened to use a fire-bomb. Upon his arrest police located material that appeared to be materials which could be used to make an improvised explosive device;

    d. 1987 – Manufacturing a Molotov Cocktail - the applicant threw a Molotov Cocktail onto premises at Taperoo. It failed to ignite properly causing only a small amount of damage.

15. These offences demonstrate a propensity to actually use explosive devices, and were committed in a context where the applicant felt aggrieved by particular issues.  This history, and the equipment and chemicals found at the applicant’s home, make the threat to kill or endanger life very serious offending. 

16. The sentencing Judge was well aware of all the above factors, both those in mitigation, and those which the Crown relied upon. The applicant appeared for himself on the sentence. The sentencing Judge thought that, prima facie, s 54(1)(b) of the Sentencing Act 2017 (SA) applied so as to require that the non-parole period of any sentence he imposed was fixed at four-fifths of the length of his head sentence.[8] At the instigation of the sentencing Judge the sentencing hearing was adjourned so as to allow a Legal Aid lawyer to attend court to provide assistance in relation to the question of whether or not the applicant’s personal circumstances were so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence (to use the words of s 54(2)(a)), and whether it was in all the circumstances inappropriate that the applicant should be sentenced to the mandatory four-fifths detention prescribed by s 54(1)(b) of the Sentencing Act. 

    [8] The applicant was a “serious repeat offender” within the meaning of s 53 of the Sentencing Act 2017 (SA) (SentencingAct) by reason of serious offences committed between 1970 and 1990. 

17. The sentencing Judge found in favour of the applicant on this matter.  He based this conclusion upon the applicant’s advanced age, his mental and physical health difficulties, injuries, disabilities and lack of mobility and the length of time between the offences which brought the applicant within the definition of a serious repeat offender and the present offending.  This finding was the subject of the Crown’s cross‑appeal.  If the Court was against the applicant on leave, the Crown was content for us to work on the basis that this was a generous finding in favour of the applicant.

18. The sentencing Judge started with the notion that a sentence of six years and six months was an appropriate punishment in relation to all the counts except possession of extremist material.[9]  He applied a discount of five per cent to that sentence giving a head sentence of six years and three months.  There was no challenge made to the discount applied on this appeal.  The sentencing Judge fixed a non-parole period of three years and six months.  This was at just over the 50 per cent mark in terms of the head sentence.  The sentence and non-parole period were to operate from 21 February 2019 when the applicant was taken into custody.  Thus, the applicant had only six months more to serve before the non-parole period expired. 

    [9]     He would have imposed a single sentence on all counts but for the fact that there was a different sentencing regime applicable to the extremist material offence.  The sentencing Judge imposed a lesser concurrent sentence for the possession of extremist material.

    Grounds of proposed appeal

19. The applicant prepared his own Notice of Appeal.  It was amended when he received legal aid to allege only one ground:[10] manifest excess having regard to the applicant’s age, proven ability to rehabilitate himself and his poor state of health.  It was said that all three factors bore upon the unlikelihood that he would reoffend and that the sentencing Judge had not expressly taken them into account in fixing the head sentence. 

    [10]   The applicant received legal aid as a result of the Crown filing a cross‑appeal.

20. In my view, the merits of the proposed appeal are poor. The sentencing Judge went out of his way to have lawyers assist the applicant on the question of exceptional circumstances. The Judge relied upon the applicant’s age, ill health and consequent lack of mobility as exceptional circumstances within s 54(2) of the Sentencing Act to remove the applicant from the operation of the mandatory four‑fifths rule in relation to parole. I think it is unarguable that the Judge should be regarded as having erred in not taking those matters into account in fixing a head sentence. The entire conduct of the sentencing hearing, and the finding on the s 54(2) point shows that the matters were very much in the forefront of the sentencing Judge’s mind.

21. Well before that part of the sentencing remarks in which parole is discussed, the Judge below says that he has had regard to the applicant’s advanced age and his heath which he describes in some considerable detail amounting to over a page of the sentencing transcript.[11]  The trial Judge was well aware of the disadvantage suffered by the applicant in his early life.  He referred to the observations of the High Court in R v Bugmy and noted that these disadvantages are recognised as continuing throughout life, not being dissipated by the passage of time.[12]  Further, the sentencing Judge was very much aware of the fact that the prisoner had, after spending the best part of his early life in prison, managed to avoid imprisonment for almost 30 years.  Before turning to the topic of parole, the sentencing judge discusses the applicant’s criminal history in detail saying:[13]

    It seems therefore, that with the exception of a charge of damaging property committed in 1988 for which you received a three-month suspended sentence, the unlawful possession in 1996, and the assault committed in 2013 your offending in recent decades has been very limited.  The last of the serious offending dates back in effect to 1988. 

    …

    [11]   Sentencing remarks of Judge Soulio, 18 February 2022, pp 8-9.

    [12] (2013) 249 CLR 571.

    [13]   Sentencing remarks of Judge Soulio, 18 February 2022, pp 3-4.

22. In my view, the sentencing judge did pay particular attention to all the matters relevant to fixing both the head sentence and the non-parole period.  The submission that he failed to do so fails at a factual level.  Furthermore, I cannot see that either the sentence or the non-parole period bespeaks error or manifest excess in the way spoken of in House v The King.[14] The head sentence was moderate and well within range having regard to the serious criminality involved in this offending, and the applicant’s antecedents. The finding pursuant to s 54(2) of the Sentencing Act was, in my view, very favourable to the applicant.

    [14] (1936) 55 CLR 499.

23. Finally, it was said that comparison with the case of R v Ellis the sentence was shown to be manifestly excessive.[15]  The offences to which the applicant pleaded guilty are unusual.  There is no body of comparable cases, either at first instance, or at appellate level.  There was one case, Ellis, where a sentence for similar offending was imposed, coincidentally, by the same sentencing Judge who sentenced the applicant and coincidentally in 2020, not long before he sentenced the applicant.  The starting point for Ellis’ sentence was four years.  However, in my view, a comparison with Ellis does not show that the applicant’s sentence was too high.  There are two significant features which favour Ellis on a comparison with the applicant’s case. 

    [15]   Sentencing remarks of Judge Soulio (R v Ellis), 8 September 2020.

24. First, Ellis had been charged with two counts of taking a step in the process of manufacture of an explosive device, and one count of possessing instructions on how to make an explosive device.  The maximum penalty in relation to each of these offences was seven years.  The applicant was charged with a more serious offence – threatening to kill – with a higher maximum penalty (10 years’ imprisonment). 

25. Secondly, Ellis had a much lesser criminal history than the current applicant.  Ellis had two convictions for theft; in relation to one no conviction had been recorded.  He had two dated convictions for possessing dangerous drugs (1994 and 1997), and conviction sin 2001 for using a carriage service to menace or harass and possessing a knife in a public place.  Other than this he had driving and drink‑driving convictions.  His history was much less overall than the applicant’s and as well, he had no history of similar serious offending with explosives, and bomb threats.

26. Like the applicant, Ellis had a difficult childhood and suffered considerable injuries in a motorcycle accident when he was 17.  He had a better employment history than the applicant, having demonstrated 10 years of stable employment before suffering mental health difficulties which meant he could not work.  He also demonstrated more stability in his life and integration into society than the applicant.  He had a long-term de facto partner and had assisted in bringing up her children. 

27. Ellis received a sentence of three years, two months and 13 days (from a starting point of four years discounted under the statute) and was given a non-parole period of one year and seven months.  In relation to Ellis’ non-parole period, the sentencing Judge remarked that it was “lower than usual” but that it was calculated to serve both Ellis and the community because it had him on parole in the community for a longer time. 

    Explanation of delay

1. The applicant swore an affidavit on 6 May 2023 explaining the delay in instituting this appeal.  In court after sentence was pronounced on 18 February 2022, the applicant asked the sentencing Judge to grant leave to appeal the sentence.  This leave was refused.  The applicant swore that after the sentencing hearing, on 18 February 2022, he had a conversation with the solicitor who had appeared on the s 54 point at the invitation of the primary Judge.  They had discussed the prospects of appeal and the applicant had signed an application form for legal aid for an appeal against sentence.  That solicitor told the applicant that in his view there were no grounds of appeal.  Nonetheless, he said he would speak to senior counsel and obtain a copy of the sentencing remarks. 

2. The applicant deposes that his prison was locked down due to an outbreak of COVID between “late February and March” 2022.  He also says that there was delay in the provision of the sentencing remarks.  He swears that it was not until June 2022 that he received advice from Legal Aid that it would not fund a sentence appeal.  The applicant then set about researching his case himself, but this was difficult because of his imprisonment.  He swears that “between September 2022 and January 2023” he wrote to the Registrar of the District Court and the Director of Public Prosecutions saying that he intended to appeal his sentence and seek an extension of time in which to do so. 

3. The applicant’s affidavit does demonstrate that from the date of sentencing he has consistently wished to appeal and, importantly, that his intention to appeal was communicated to the Director of Public Prosecutions, first on the sentencing day when the applicant sought the primary Judge’s leave to appeal, and later “between September 2022 and January 2023”, by letter. 

4. In my view, if the applicant had shown sufficient prospect of success on the appeal itself, his explanation of delay would have been satisfactory enough.  As it is, for the reasons discussed above, I cannot see that there are prospects of success on an appeal against sentence and there is therefore no point in this Court extending time to appeal, or granting leave to appeal against sentence more generally.  I propose that this Court dismiss the application for leave to appeal and the application to extend time in which to appeal.