Director of Public Prosecutions (SA) v Jones - [2021] SASCA 114

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v JONES
[2021] SASCA 114
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
13 October 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
On 5 May 2021, the respondent was found guilty of one count of aggravated cause harm with intent to cause harm. The features of aggravation were that the victim was only five years of age and the respondent was his guardian, acting as his father, at the time of the offending.
On 9 January 2019, the victim was playing with his pet dog when it became entangled in its leash and began choking. As punishment for choking the dog, the respondent placed the leash around the victim’s neck and hung him from a clothesline. When the victim’s eyes began to bulge, the respondent released him. The victim did not suffer any permanent injury.
The respondent was sentenced to a term of 12 months imprisonment with a non-parole period of six months, suspended upon entry into a good behaviour bond for 12 months in the sum of $100.
The Crown appeals against sentence on the basis that the sentence was manifestly inadequate.
Held (per the Court), refusing permission to appeal and dismissing the appeal:
1.Whilst the sentence, including the length of the good behaviour bond, is unquestionably lenient, it is not so lenient so as to warrant the intervention of this Court.
2.Although in many cases conduct of this kind might well warrant the imposition of a sentence and bond significantly longer than the length of the sentence and bond imposed in this case, the respondent’s intellectual disability makes his an inappropriate case through which to address general sentencing standards for an offence of this kind.

Sentencing Act 2017 (SA) ss 3, 4, referred to.
Birch v Fitzgerald (1975) 11 SASR 114; Everett v The Queen (1994) 181 CLR 295; Muldrock v The Queen (2011) 244 CLR 120; R v Blackmore [2004] SASC 298; R v Cowe (2010) 108 SASR 225; R v Galffy [2009] SASC 261; R v Harradine [2012] SASCFC 103; R v Harris [2020] SASC 141; R v Marrone [2011] SASCFC 78; R v Monks (2019) 133 SASR 182; R v Mooney (unreported, Victorian Court of Appeal, 21 June 1978); R v Osenkowski (1982) 30 SASR 212; R v Partridge (2008) 102 SASR 233; Webb v O’Sullivan [1952] SASR 65; Yardley v Betts (1979) 22 SASR 108, discussed.

DIRECTOR OF PUBLIC PROSECUTIONS (SA) v JONES
[2021] SASCA 114
Court of Appeal - Criminal: Livesey P, Doyle and Bleby JJA
THE COURT:
Introduction

In this Crown appeal against sentence, the Director of Public Prosecutions does not challenge the suspension of the sentence: rather, it is said that the head sentence, non-parole period and good behaviour bond are all manifestly inadequate. There is no question that it was a lenient sentence. The question is whether it was too lenient. In particular, was the sentence so inadequate as to comprise the kind of rare and exceptional case in which it is appropriate to grant the Director permission to appeal against sentence? [1] As King CJ has explained:[2]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
[1] R v Osenkowski (1982) 30 SASR 212, 213 (King CJ); Everett v The Queen (1994) 181 CLR 295, 299‑300 (Brennan, Deane, Dawson and Gaudron JJ); R v Blackmore [2004] SASC 298, [22] (White J, with whom Doyle CJ and Perry J agreed); R v Harradine [2012] SASCFC 103, [17] (Sulan J, with whom White and Nicholson JJ agreed).
[2] R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ, with whom White J agreed).
The offence
The respondent was found guilty of the aggravated offence of causing harm with intent to cause harm, contrary to s 24(1)(b) of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty is imprisonment for 13 years. The features of aggravation were that the victim was only five years of age and the respondent was his guardian, acting as his father, at the time of the offending.
Although the prosecution had also charged the offence of endangering life, that was ultimately not pressed.
The offender and the victim
The respondent is the uncle of the victim. Because the respondent’s sister and the victim’s father were unfit to care for him, the respondent had custody of the victim since he was only six weeks of age. He had always referred to the respondent as “Dad”.
The offending
Shortly before 9 January 2019, the victim was given a Staffordshire Bull Terrier puppy, which he loved. On 9 January, the victim was playing with the dog when it became entangled in its leash: the dog became distressed and was choking. The respondent decided that the victim should be disciplined by having the leash placed around his neck and hung by the leash from a clothesline. The respondent intended to cause the victim some pain so as to teach him a lesson. He wanted to show the victim how the dog must have felt. According to the sentencing Judge:
When [the victim’s] eyes began to bulge you quickly came to your senses and released him. You did not cause him any lasting physical harm. He had some bruising around his neck for a while after ... He would have been terrified.
You should not have disciplined him in the way you did. You went well beyond what a parent is entitled to do to chastise a child.
The circumstances of the offender
The respondent was, at the time of sentence, nearly 46 years of age, single with no children of his own. He had experienced a difficult childhood, losing his sister and his father by the time he was three years of age. His mother remarried a man with mental health problems who was sometimes violent.
The respondent has an intellectual disability. He cannot read or write. He did poorly at school and left at 16 years of age. He did a course in welding and undertook various jobs before caring fulltime for the victim. Whilst he had problems with alcohol and drugs, drug tests whilst he was caring for the victim were always negative.
According to a psychological report, the respondent could not pass a basic test to demonstrate the capacity to act as a parent to a young child. Nonetheless, there appears to be no issue that the respondent and the victim enjoyed a genuine, loving relationship. The respondent remains distressed at being separated from a child whom he tried to care for as his own son.
Although the respondent has committed a number of offences relating to motor vehicles and dishonesty, he has never previously appeared in Court charged with an offence of violence and he has never been sentenced to an immediate sentence of imprisonment. He has never breached a good behaviour bond.
The sentencing Judge’s remarks and sentence
The sentencing Judge thought that the respondent continued to deny his offending because he could not bring himself to admit that he deliberately hurt a young child whom he loved. The sentencing Judge had explicit regard to general deterrence, intending to make it clear to other people that they cannot hurt children in the way the respondent hurt the victim. Nonetheless, the sentencing Judge also thought that there was very little danger of the respondent ever hurting the victim or any other child again.
The respondent spent 11 days in gaol immediately after he was arrested shortly following the incident. The sentencing Judge had regard to this period of incarceration and imposed a head sentence of 12 months and fixed a non-parole period of six months, suspending that sentence upon entry into a good behaviour bond for a period of 12 months. During the period of the bond, the respondent was placed under the supervision and directions of a community corrections officer.
The Director’s submissions
The Director has emphasised the need for protection of the young and vulnerable in our community. That is a weighty consideration in a case such as this.[3] Some of the relevant considerations were recently reviewed in R v Harris:[4]
The care and protection of the young and vulnerable is important to any civilised society. The responsibility of the courts in assisting to safeguard the young and vulnerable in our society has been consistently recognised.[5] That responsibility is particularly acute in cases involving death or really serious harm to young infants in their own homes, when they are utterly helpless, and where they should expect to be safe and secure.
The primary purpose of sentencing a defendant is to protect the safety of the community.[6] Secondary purposes include ensuring punishment, to publicly denounce and deter offending, and to recognise the harm done to the victim and to the community.[7]
[3]     R v Partridge (2008) 102 SASR 233, [7] (Gray, Sulan and David JJ); R v Galffy [2009] SASC 261, [8] (Bleby J); R v Cowe (2010) 108 SASR 225, [26] (Sulan J, with whom White and David JJ agreed).
[4]     R v Harris [2020] SASC 141, [2]-[3] (Livesey J).
[5]     R v Partridge (2008) 102 SASR 233, [7] (Gray, Sulan and David JJ) and R v Galffy [2009] SASC 261, [8] (Bleby J, with whom Doyle CJ agreed, Kelly J contra).
[6]     Sentencing Act2017 (SA), s 3.
[7]     Sentencing Act2017 (SA), s 4.
Nonetheless:[8]
However, the protection of the community can also be served by rehabilitation and the imposition of a sentence which, whilst operating as a deterrent to others, recognises the need to properly reflect on a defendant’s genuine contrition and capacity to make a worthwhile contribution to the community of which he remains a member:[9]
But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilized nations.
These are considerations that are also reflected in the secondary purposes of sentencing as well as observations made by this Court over many years.[10]
[8] R v Harris [2020] SASC 141, [3] (Livesey J).
[9] Yardley v Betts (1979) 22 SASR 108, 112-113 (King CJ).
[10] Sentencing Act2017 (SA), s 4; Webb v O’Sullivan [1952] SASR 65, 66 (Napier CJ); Birch v Fitzgerald (1975) 11 SASR 114, 116-117 (Bray CJ).
The community is entitled to look to the Courts to protect children and to expect that sentences will operate as an effective deterrent.[11]
[11] R v Partridge (2008) 102 SASR 233, [7] (Gray, Sulan and David JJ).
Sentencing considerations and intellectual disability
The serious features of this offending include:
1.The chastisement involved an unnecessarily violent overreaction to an accident involving a pet.
2.Although no serious lasting harm was caused, the young child was, in these circumstances, particularly vulnerable.
3.The respondent intended to cause harm and placed the victim at very serious risk of even greater harm.
4.The experience must have been terrifying for the victim. It resulted in him being removed from the only home he had known.
As against these important, aggravating features, it must be acknowledged that:
1.The incident was relatively brief and, in fact, involved no proved long term physical or psychological harm.
2.As a result of the incident, the victim was removed from the care of the respondent, dislocating what was a loving relationship for them both. This must undoubtedly have been painful for the respondent. He is likely to still be experiencing the consequences of that separation.
3.There is no prospect of any recurrence of similar behaviour to the victim or any other child.
4.The respondent has a marked intellectual disability with an IQ assessed as less than 70. His non-verbal abilities were equivalent to those of an average four-year-old and his verbal abilities were equivalent to those of an average nine-year old child. Accordingly, he may be regarded as less morally culpable than an offender who is not disabled, and “an inappropriate medium for achieving general deterrence”.[12] In Muldrock v The Queen, the High Court explained:[13]
A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence.
[12] R v Monks (2019) 133 SASR 182, [42] (Doyle J, with whom Peek and Parker JJ agreed), citing Muldrock v The Queen (2011) 244 CLR 120, [53]-[54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); R v Hronopoulos [2017] SASCFC 143, [24] (Stanley J, Blue and Hinton JJ agreeing); Mason-Stuart v The Queen (1993) 61 SASR 204, 205-206 (King CJ, Millhouse and Olsson JJ agreeing).
[13] Muldrock v The Queen (2011) 244 CLR 120, [54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ)
The High Court cited with approval the following passage from the decision of Lush J in R v Mooney:[14]
[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and the needs of the community.
[14] R v Mooney (unreported, Victorian Court of Appeal, 21 June 1978); Muldrock v The Queen (2011) 244 CLR 120, [53] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Permission refused
It is clear from a close reading of the sentencing remarks that, notwithstanding abhorrent conduct which was intended to cause the victim pain, the sentencing Judge was influenced by the respondent’s disability in the context of what was otherwise a close and loving relationship. The offending comprised an utterly misguided and dangerous attempt at disciplining a child by a man with a serious intellectual disability.
Whilst the sentence, including the length of the bond, is unquestionably lenient, we are not persuaded that it is so lenient as to warrant the intervention of this Court on a Crown appeal against sentence. Granted, in most cases, conduct of this kind might well warrant the imposition of a sentence and bond significantly longer than the length of the sentence and bond imposed in this case.[15] The respondent’s intellectual disability, however, make his an inappropriate case through which to address general sentencing standards for an offence for which there are no relevant sentencing guidelines.[16]
[15] See, for example, R v Cowe (2010) 108 SASR 225, [22] (Sulan J, with whom White and David JJ agreed).
[16] R v Marrone [2011] SASCFC 78, [13] (Doyle CJ), these offences “vary as much in their nature as do the backgrounds and circumstances of persons who commit them”.
In the particular and unusual circumstances of this case, we are not persuaded that the Director should be given permission to appeal.
We refuse permission to appeal and dismiss the appeal.