Ellis v The Queen

[2021] SASCA 103

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

ELLIS v THE QUEEN

[2021] SASCA 103

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice David)

22 September 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS

After pleading guilty to one count of aggravated assault and one count of indecent assault, the applicant was sentenced as a “serious repeat offender” to a term of three years, nine months and 11 days imprisonment, with a non-parole period of three years and nine days. The aggravated assault of LR occurred against the background of significant domestic violence, in breach of an intervention order, and was witnessed by a child. The victim of the indecent assault, SG, was subjected to a serious and sustained assault and was ultimately removed from the care of her foster mother, LR, as a consequence.

Held (per the Court), refusing permission to appeal:

1.It is wrong in principle to impose a lesser sentence than the circumstances of the offending and offender warrant merely because the statute precludes suspension and home detention and because it requires a mandatory minimum non-parole period. The sentencing court must always be astute to impose an appropriate sentence having regard to relevant sentencing considerations as mandated by the Sentencing Act 2017 (SA) and the common law.

2.The proposed appeal raises no issue of principle nor any arguable error. The sentence was not manifestly excessive. The sentence lay within the permissible range of sentences.

Reiner v The Queen (1974) 8 SASR 102; AIO v The Queen [2019] SASCFC 121; R v De Sousa Leal [2019] SASCFC 57; R v Morse (1979) 23 SASR 98; Kentwell v The Queen (2014) 252 CLR 601; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499, 504-505; Markarian v The Queen (2005) 228 CLR 357; Bugmy v The Queen (2013) 249 CLR 571, considered.

ELLIS v THE QUEEN
[2021] SASCA 103

Court of Appeal – Criminal:    Livesey P and David JA

THE COURT (ex tempore): 

1. This is an application for permission to appeal against sentence.

2. The applicant was originally charged with a number of offences but, on 28 June 2021, eventually pleaded guilty to:

   1.One count of aggravated assault, contrary to s 20(3)(b) of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty is a term of imprisonment of three years;

   2.One count of indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty is eight years imprisonment.

3. The applicant submitted to the sentencing Judge that he acted with a degree of self-defence but the sentencing Judge indicated that, as that was a matter in mitigation, she would not sentence on that basis unless the applicant gave evidence.  The applicant did not give evidence. 

4. The sentencing Judge identified the notional terms of imprisonment in relation to each offence, before applying the available reduction for the guilty pleas, as follows:

   1.On the aggravated assault, 12 months imprisonment, reduced by 5%, to 11 months and 13 days;

   2.On the indecent assault, three years and six months imprisonment, reduced by 5% to three years, three months and 28 days.

5. The sentencing Judge allowed for six months partial concurrency. 

6. The applicant was sentenced as a “serious repeat offender” to a term of imprisonment of three years, nine months and 11 days. A non-parole period of four-fifths of the head sentence was fixed at three years and nine days, pursuant to s 54(1)(b) of the Sentencing Act 2017 (SA). The sentence was backdated to commence from 12 February 2020.

   1.That the sentencing Judge erred in notionally imposing a period of 12 months imprisonment for count 1, prior to the application of discount for guilty plea;

   2.That the sentencing Judge erred in notionally imposing a period of three years, six months imprisonment for count 2, prior to the application of discount for guilty plea;

   3.That the sentence imposed for this offending was manifestly excessive.

7. The Director of Public Prosecutions contends that these grounds are each plainly unarguable. Earlier today, new grounds were put forward. We will return to those.

8. The factual basis for sentence was that the applicant and LR (the first victim) were involved in a volatile relationship.  An intervention order had been in place since July 2019.  On New Year’s Eve 2019, LR, her father and SG (a second victim, aged 15 years) were at their home in Ottoway.  In breach of the intervention order, the applicant went to those premises and commenced drinking alcohol with LR.  The applicant left the home at around 10.00 pm before returning just before 1.00 am.  The applicant was heard to be arguing with LR before he again left. 

9. At around 3.00 am SG woke to screaming by LR.  SG saw the applicant enter the house through the kitchen window.  The applicant grabbed LR’s face with both hands and slammed the back of her head into the wall of the hallway, causing a large hole in the wall.  That is the aggravated assault. 

10. Later that morning, SG made toast and went into the back yard.  The applicant was still at the house.  He went outside and grabbed SG by the breast under her shirt, albeit above her bra.  LR came outside and questioned the applicant before telling SG to go inside.  SG went to her bedroom but later, again went outside.  The applicant was still at the house and again followed SG outside.  As she was standing near the door, the applicant pulled her on top of himself and tried to pull her pants down.  SG managed to get away from the applicant.  She went to a side gate. The applicant grabbed her from behind and put his hand down her underwear, touching her vagina.  That is the indecent assault.

11. SG again managed to get away from the applicant and went inside the home.  Later, SG went outside, looking for her dog.  Again, the applicant followed her and forcibly kissed her on the lips.  SG turned her head and the applicant kissed her cheek.  As SG tried to move away, the applicant grabbed her arm and pulled her to the ground.  SG fell onto her stomach.  Eventually she managed to get away from the applicant and get back inside the home.

12. Although the applicant has no history of sexual offending, he has an extensive antecedent history, including significant periods of time in custody for serious offending. 

13. In the course of submissions, it became clear that it is not now suggested that by notionally identifying her starting points, the sentencing judge erred.  No technical issue is raised regarding the notional sentences set by the sentencing Judge: the complaint is that they are excessive.

14. Nonetheless, a large number of other complaints were made in submissions.  These include complaints about the factual basis for sentence, the adequacy of the sentencing remarks, a failure to identify whether the aggravated assault fell at the lower or higher end of the “scale”, that the sentence fell outside the permissible range of sentences commonly imposed in the Magistrates Court, that the sentencing Judge placed undue weight on the applicant’s prior convictions – although that is not now pressed – that the indecent assault was erroneously categorised at the high end of the “scale of seriousness” and that the sentence was crushing, when viewed against the requirement to sentence as a “serious repeat offender”.  That is to say, because the applicant was sentenced as a “serious repeat offender”, the non-parole period was mandated at four-fifths of the head sentence and there was no scope for either suspension or serving the sentence on home detention. 

15. In our view, the sentence was not manifestly excessive.  The sentence in this case lay within the permissible range of sentences that might have been imposed and no error of fact or law has been identified.[1] 

    [1]     Kentwell v The Queen (2014) 252 CLR 601, [35] (French CJ, Hayne, Bell and Keane JJ).

16. It is well recognised that an appeal court may not intervene even if it might have come to a different conclusion or the sentence is different from those imposed in other cases.[2]  Before this Court can intervene, there must be established a specific error of fact or law, or the sentence must be capable of being regarded as unreasonable or plainly unjust,[3] where the sentence is simply “outside the permissible range of sentences for the offender and the offence”.[4] 

    [2]     Hili v The Queen (2010) 242 CLR 520, [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Bugmy v The Queen (2013) 249 CLR 571, [24] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ).

    [3]     House v The King (1936) 55 CLR 499, 504-505, 507 (Dixon, Evatt and McTiernan JJ); Markarian v The Queen (2005) 228 CLR 357, [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

    [4]     Kentwell v The Queen (2014) 252 CLR 601, [35] (French CJ, Hayne, Bell and Keane JJ); Hili v The Queen (2010) 242 CLR 520, [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

17. The conclusion of appealable error can only be reached following consideration of all of the matters relevant to fixing sentence, including the maximum sentence, the standards of sentencing customarily observed, the place which the criminal conduct occupies in the scale of seriousness for crimes of that type as well as the personal circumstances of the offender.[5] 

    [5]     R v Morse (1979) 23 SASR 98, 99 (King CJ, with whom White and Mohr JJ agreed).

18. The assault on LR occurred against a significant background of domestic violence, in direct breach of an intervention order witnessed by SG, a child.  It might appropriately described as serious, though not the most serious example of this kind of offending.

19. SG was a foster child who, at 15 years of age, may be regarded as particularly vulnerable.  The applicant was 33 years.  His offending was in significant breach of trust.  His offending occurred in the context of SG’s repeated attempts to get away from the applicant, making it plain that she was not interested in any sexual activity.  The offending had a significant impact on the victim, as outlined in her victim impact statement, which included her removal from the home at which she had been fostered since she was two years of age.

20. Notwithstanding the well-recognised limits in comparing cases,[6] cases such as R v De Sousa Leal[7] and AIO v The Queen,[8] do tend to illustrate that the sentence for the indecent assault charge falls within the permissible range of sentences for single instances of indecent assault on teenaged victims. The applicant emphasises that the cases suggest a range of three to four years with sustained offending against younger children, or in some cases, multiple children. Whilst the authorities relied on by the applicant exhibit these features, they do not demonstrate that this sentence, whilst at the upper end, was outside the available range.[9] As for the aggravated assault, whilst it is submitted that it was simply too high and that Magistrates typically impose less than 12 months for more serious offending, we are not satisfied that the sentence is manifestly excessive.

    [6]     See eg, Barbaro v The Queen (2014) 253 CLR 58.

    [7]     R v De Sousa Leal [2019] SASCFC 57 concerned a single count of indecent assault against a 17-year‑old with a starting point of three years reduced to two years, nine months and 29 days. A non-parole period of 20 months was fixed. Whilst this was ordered to be served on home detention, there was no antecedent history and the sentence pre-dated the commencement of s 71 of the Sentencing Act 2017 (SA). The Court of Criminal Appeal described the sentence as at the high end of the range, but not outside the available range.

    [8]     AIO v The Queen [2019] SASCFC 121 concerned a single count of indecent assault of a 14-year-old on a public bus. The starting point of four years was reduced to two years and 10 months and, again, it was described as high. Although the offending was not trivial, the victim was subjected to a traumatic experience. The appellant had a poor antecedent history and his poor prognosis, together with the needs of community protection and deterrence, resulted in the conclusion that the sentence was not manifestly excessive.

    [9]     Rendic v The Queen [2021] SASCA 23, [59] (Bleby JA); R v Douglass [2011] SASCFC 6, [17] (Gray, Sulan and Anderson JJ); R v Horstmann [2010] SASC 103, [29] (Gray J, with whom Kourakis J agreed), [34] (Vanstone J, with whom Kourakis J agreed); R v T, N [2008] SASC 1, [44] (Doyle CJ with whom Vanstone J and Sulan J agreed); B, RS v Police [2005] SASC 432, [18] (Debelle J); Millwood v Police [2003] SASC 259,[31] (Perry J); R v Rogers (2002) 81 SASR 386, [21], [41]‑[42] (Gray J, with whom Perry and Wicks JJ agreed) (noting that the sentence was held to be manifestly excessive in light of the appellant’s “prior unblemished record and excellent personal antecedents”, contrary to the personal circumstances of the appellant in the present case); R v D [1997] SASC 6350, 7-11 (Doyle CJ), 12-13 (Millhouse J), 15-17 (Bleby J).

21. Insofar as the applicant criticises the sentence as “particularly crushing” given the constraints now imposed by the Sentencing Act 2017 (SA) which, by ss 71(2)(b)(ii) and 96(3)(ba),[10] preclude suspension and home detention, “compounded” by the necessity to be sentenced as a “serious repeat offender”, that submission comes close to a contention that these legislative constraints ought to have resulted in a lower sentence.  Insofar as that contention is pressed, it must be rejected.  It is wrong in principle to impose a lesser sentence than the circumstances of the offending and an offender warrant merely because the statute now precludes suspension and home detention and, in addition, because it requires a mandatory minimum non-parole period.  The sentencing court must always be astute to impose an appropriate sentence having regard to relevant sentencing considerations as mandated by the Sentencing Act 2017 (SA) and the common law.

    [10]   Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA).

22. In the hours before the hearing today, the applicant recast his appeal grounds to raise as separate grounds:

    1. The learned sentencing Judge erred, in the process of imposing sentence for Count 1, by:

    1.1    Providing inadequate remarks as to the factual basis of the sentence; and

    1.2    Failing to identify whether the aggravated assault in this case fell at the lower or higher end of the scale for offences of that type;

    2.The learned sentencing Judge erred, in process of imposing sentence for Count 2, by:

    2.1    Incorrectly categorising the indecent assault as being at the higher end of the scale; and

    2.2    Failing to take into account relevant mitigating circumstances.

    3.The learned sentencing Judge erred in imposing a sentence that is manifestly excessive by:

    3.1    Imposing a sentence for this aggravated assault which is above the range of sentences that are imposed in the Magistrates Court in similar circumstances;

    3.2    Imposing a manifestly excessive starting point of 12 months imprisonment for Count 1; and

    3,3    Imposing a manifestly excessive starting point of 3 years 6 months imprisonment for Count 2.

23. Ground 3 replicates the existing grounds which have already been addressed.  Grounds 1 and 2 are new but they were addressed in the written submissions which were provided to this Court. The appeal was commenced in July 2021. This matter was set down on 13 September 2021, after outlines were exchanged during September 2021. No good reason has been offered for lodging further grounds at the last moment.  Nonetheless, these grounds are without merit.  A sentencing court is not obliged to provide reasons for decision and there is no requirement to categorise the offending.[11]  The sentencing remarks in this case are not inadequate and they are not affected by any specific error of fact or law.

    [11]   Reiner v The Queen (1974) 8 SASR 102, 106 (Bray CJ), 114 (Wells J).

24. The proposed appeal raises no issue of principle nor any arguable error in the approach of the sentencing Judge or the sentence imposed.  Permission to appeal is refused.