Hutchins v The Queen

[2021] SASCA 31

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

HUTCHINS v THE QUEEN

[2021] SASCA 31

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Livesey)

13 April 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - TRESPASS TO LAND

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY

The appellant was sentenced for the offences of threatening a person in judicial proceedings to influence the outcome, contrary to s 248 of the Criminal Law Consolidation Act 1935 (SA) (the Act), aggravated serious criminal trespass in a place of residence, contrary to s 170(1) of the Act and a charge of theft, contrary to s 134 of the Act.

The sentencing Judge imposed a total sentence of five years, six months and 19 days for these offences.

At the time of this offending the appellant was on parole with an unexpired balance of an earlier sentence of three years, seven months and 11 days.

It was agreed that the appellant was a “serious repeat offender” within the meaning of s 53 of the Sentencing Act 2017 (SA).

Although s 54(1)(b) only required that the minimum non-parole period of four-fifths of the head sentence be calculated on the head sentence of five years, six months and 19 days, the sentencing Judge added the unexpired parole period to this head sentence before determining the minimum four-fifths non-parole period pursuant to s 54(1)(b) of the Sentencing Act 2017 (SA). This resulted in a non-parole period of seven years and four months.

It was conceded that this involved a specific error and that the non-parole period was manifestly excessive.

Held (by the Court), allowing the appeal and quashing the sentence imposed by the sentencing Judge:

1. The sentencing Judge erred in the application of s 54 of the Sentencing Act 2017 (SA) by having regard to the unexpired parole period for earlier offending when considering the minimum non-parole period under the four-fifths rule.

2. When all of the relevant material is before the Court of Appeal it will ordinarily be in the interests of justice that resentencing be considered by the Court of Appeal pursuant to s 158(7)(a) of the Criminal Procedure Act 1921(SA).

3.      The appellant is resentenced for the three subject offences to imprisonment for five years, six months and 19 days, cumulative on the unexpired balance of the earlier sentence, making a total head sentence of nine years, two months and 11 days.

4. Pursuant to s 47 of the Sentencing Act 2017 (SA), a non-parole period of six years is fixed.

Sentencing Act 2017 (SA) s 47, s 54(1)(b); Criminal Law Consolidation Act 1935 (SA) s 170(1), s 134, s 248; Criminal Procedure Act 1921 (SA) s 158(7)(a), referred to.

Da Silva v The Queen [2020] SASCFC 66; R v Culley (2019) 134 SASR 92, discussed.

Knight v The Queen [2021] SASCFC 12; R v Collins [2018] SASCFC 97; R v Creed (1985) 37 SASR 566; R v Delphin (2001) 79 SASR 429; R v Humby [2004] SASC 358; R v Monks (2019) 133 SASR 182, considered.

HUTCHINS v THE QUEEN
[2021] SASCA 31

Court of Appeal – Criminal: Kelly P, Lovell and Livesey JJA

THE COURT: 

Introduction

1. In this appeal against sentence it is conceded that the learned sentencing Judge made an error in the application of s 54(1)(b) of the Sentencing Act 2017 (the Sentencing Act), similar to that made in Da Silva v The Queen.[1] That is, when fixing the minimum four-fifths non-parole period, the sentencing Judge did not merely have regard to the sentences she imposed but, erroneously, she also had regard to an unexpired parole period for earlier offending. 

   [1]     Da Silva v The Queen [2020] SASCFC 66 (Kourakis CJ, Stanley and Livesey JJ).

2. Accordingly, it is also conceded that the non-parole period is manifestly excessive. 

3. Whilst this Court has a discretion to remit for resentence, where all of the relevant material is available to this Court it will usually be in the interests of justice that this Court consider resentencing the appellant pursuant to s 158(7)(a) of the Criminal Procedure Act1921 (SA).

4. Because of the specific error made when fixing the non-parole period, it is accepted that “appellate review of a flawed non-parole period” will usually “encompass a reappraisal of both the head sentence and the non-parole period”.[2]  Accordingly, it is conceded that the whole sentence must be set aside.  Nonetheless, this Court may, in the independent exercise of its sentencing discretion, decline to resentence or adopt aspects of the approach taken by the sentencing Judge.[3]

   The subject offending and the sentences imposed

   [2]     Da Silva v The Queen [2020] SASCFC 66, [56] (Livesey J, with whom Kourakis CJ and Stanley J agreed).

   [3]     Da Silva v The Queen [2020] SASCFC 66, [38], [57] (Livesey J, with whom Kourakis CJ and Stanley J agreed).

5. The appellant fell to be sentenced for three offences to which he had pleaded guilty (the subject offences):

   1.A charge of threatening a person in judicial proceedings to influence the outcome, contrary to s 248 of the Criminal Law Consolidation Act 1935 (SA) (the Act), which carries a maximum penalty of 10 years imprisonment.  The sentencing judge imposed a head sentence of 18 months imprisonment and, after allowance for the appellant’s guilty plea, imposed a head sentence of one year and 19 days;

   2.A charge of aggravated serious criminal trespass in a place of residence, contrary to s 170(1) of the Act, which carries a maximum penalty of life imprisonment. This offence was addressed together with a charge of theft, contrary to s 134 of the Act, which carries a maximum penalty of 10 years imprisonment. For these two offences, the sentencing Judge imposed one penalty of five years imprisonment under s 26 of the Sentencing Act which, after allowance for the guilty pleas, was reduced to four years and six months.

   3.The second sentence was ordered to run cumulatively on the first sentence, resulting in a total sentence of five years, six months and 19 days.

6. It was agreed before the sentencing Judge that the appellant was, by reason of his pleas to the subject offences, a “serious repeat offender” within the meaning of s 53 of the Sentencing Act. 

7. Although s 54(1)(b) required only that the sentences imposed by the sentencing Judge for the subject offences be subject to a minimum non-parole period of four-fifths of the head sentence of five years, six months and 19 days, the sentencing Judge added the unexpired parole period of three years, seven months and 22 days and determined the minimum non-parole period by reference to a total head sentence of nine years, two months and 11 days.

8. After rejecting the contention that the appellant’s personal circumstances were “so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence”,[4] the sentencing Judge fixed a non-parole period at four-fifths of nine years, two months and 11 days, being seven years and four months.  That was an error.

   [4]     Knight v The Queen [2021] SASCFC 12 (Kelly, Livesey and Bleby JJ).

9. In fact, under s 54(1)(b) of the Sentencing Act, the four-fifths rule only applied to the head sentence imposed by the sentencing Judge of five years, six months and 19 days, resulting in a minimum non-parole period of four years, five months and 10 days. Nonetheless, the Court may, in the exercise of its discretion, impose a non-parole period greater than four-fifths of the sentence, the imposition of which invokes s 47 of the Act.[5]

   [5]     R v Culley (2019) 134 SASR 92 (Kourakis CJ, Peek and Hughes JJ); Da Silva v The Queen [2020] SASCFC 66, [50] (Kourakis CJ, Stanley and Livesey JJ).

10. And, as was explained in R v Culley,[6] a sentencing judge will in many cases “retain a wider discretion” when fixing a non-parole period when there is an existing non-parole period, as was the case in Da Silva v The Queen.[7] Although this case concerns the balance of a sentence or an unexpired period of parole, rather than an existing non-parole period, it raises a similar problem given the need to fix a non-parole period in respect of sentences of imprisonment imposed for offending committed “during a period of release on parole”, having regard to the requirements of s 54(1) and ss 47(1)(a) and 47(2) of the Sentencing Act.  

    [6]     R v Culley (2019) 134 SASR 92, [58]-[59] (Kourakis CJ, Peek and Hughes JJ).

    [7]     Da Silva v The Queen [2020] SASCFC 66, [50] (Kourakis CJ, Stanley and Livesey JJ).

11. When fixing the non-parole period under ss 47(1)(a) and 47(2) of the Sentencing Act, amongst other matters, the Court “must have regard to the total period of imprisonment … that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve”. The “total period of imprisonment” for the subject offences of five years, six months and 19 days, together with the balance of the previous sentence of three years, seven months and 22 days, totalled nine years, two months and 11 days.

12. Before considering resentencing, it is appropriate to notice aspects of the appellant’s personal circumstances as well as the circumstances of his earlier and subject offending.

    The appellant’s personal circumstances

13. The appellant is an Aboriginal man raised by his grandparents who was subjected to what the sentencing Judge described as a “deprived background”. He was, at the time of sentencing, 34 years old.

14. The appellant was diagnosed with ADHD and was frequently moved between different foster placements.  During one of these, the appellant was subjected to physical abuse. By his late teens the appellant was using amphetamines.  Although he had managed to undertake some work following a four-year carpentry apprenticeship, a feature of his prior offending was sporadic but persistent illicit drug use in preference to using prescribed anti‑depressant and anti‑anxiety medication.

15. The appellant has three children from a prior relationship which has now broken down.  He has had difficulties maintaining a relationship with his children.  There is an intervention order in place concerning his former partner. 

16. At times, the appellant has become depressed and suicidal.  He has been assessed by Mr Bell, a psychologist, as having an intellectual capacity in the low‑average range, together with symptoms of low mood and emotional reactivity, together with marked pessimism about his long-term future.

    The appellant’s earlier offending

17. Unfortunately, the appellant has a very significant history of violent and dishonest offending, with convictions for offending including larceny, assault police, aggravated assaults against a child or spouse and taking property without consent.  In 2007, he was sentenced for the offence of wounding with the intent of doing grievous bodily harm following a stabbing.  In 2013, he was sentenced for three offences of aggravated robbery and attempted aggravated robbery. The element of aggravation was the use of a knife.  The appellant was sentenced to seven years and eight months imprisonment with a non-parole period of four years. 

18. The subject offending occurred whilst the appellant was on parole for this last-mentioned offending.

    The appellant’s subject offending

19. The subject offending was very serious.

20. The first charge concerned an incident at around 7:00 pm on Wednesday, 8 November 2017 when the appellant knocked on the victim’s door.  When she opened it, the appellant demanded that statements made to police be retracted.  These statements had been made by the victim’s domestic partner and another person.  The appellant was persistent and increasingly angry.  He started to swear and make gun motions with his fingers, pretending to shoot.  Though the appellant later maintained that he had no intention of pursuing these threats, the victim and the others threatened have, understandably, suffered ongoing distress.

21. The second and third offences concerned an incident at around 4:00 am on 20 February 2018 when the appellant broke into a home at Kilburn, waving a tyre iron, swearing and demanding the keys to a motor car.  After demanding and obtaining money, the appellant stole a motor car which contained personal items of value and importance to one of the victims.  Understandably, this offending was terrifying for the victims involved.

22. The appellant later had some difficulty recalling the events, particularly of the offending in 2018, because of alcohol and drug consumption. 

23. Ultimately it was agreed that there were five “triggering offences” which warranted dealing with the appellant as a “serious repeat offender” pursuant to the Sentencing Act. 

24. By way of mitigation, it was submitted that the appellant had chronic and enduring major depression, a chronic panic disorder, severe anxiety and panic attacks and a problem with a “long-term ease to anger”.  He had encountered difficulty reintegrating into the community. 

25. Although the appellant was dissatisfied with the “psychosocial and practical supports” offered to him on his release, and found independent living “very difficult”, there were problems associated with the appellant’s failure to take up all of the support which had been offered to him.  In addition, there was a positive drug test whilst on parole and the appellant’s engagement with supervision decreased, after which he ceased regular reporting.

26. The sentencing Judge was plainly concerned about the appellant’s problematic rehabilitation prospects. As well, though she found that the appellant responded well to the Aboriginal sentencing conference held under s 22 of the Sentencing Act and was genuinely remorseful, the seriousness of the appellant’s offending weighed heavily.  The need for community protection and deterrence (both specific and general deterrence) are particularly important in a case such as this.

    Resentencing the appellant

27. No separate challenge to or criticism has been made of the head sentences imposed, nor the reductions made for the guilty pleas (30 percent in relation to the first offence and 10 percent in relation to the two subsequent offences). 

28. In all of the circumstances, we would also impose the head sentences and reductions made by the sentencing Judge,[8] which would result in a sentence of five years, six months and 19 days which, together with the unexpired parole period of three years, seven months and 22 days, would make a total head sentence of nine years, two months and 11 days.

    [8]     In the case of a threat made to a judicial officer, a starting point of two years and six months was said to be manifestly excessive for an offence carrying a maximum penalty of seven years in R v Collins [2018] SASCFC 97. The matters relevant to determining the seriousness of an offence of aggravated serious criminal trespass were outlined in R v Delphin (2001) 79 SASR 429, [43]. In R v Humby [2004] SASC 358, on a Crown appeal, a starting point of nine years was fixed for the offences of aggravated serious criminal trespass and robbery in company.

29. Having regard to s 54(1)(b) of the Sentencing Act, the minimum non-parole period for the three subject offences is four-fifths of five years, six months and 19 days, being a minimum non-parole period of four years, five months and 10 days. It was not suggested that “exceptional circumstances” exist under s 54(2) of the Sentencing Act.

30. As mentioned, the total period of imprisonment by virtue of the new sentence and the balance of the previous sentence is nine years, two months and 11 days.  There is a need for proportionality between the offending, the head sentence and the non-parole period.[9]

    [9]     R v Creed (1985) 37 SASR 566, 568 (King CJ): “the non-parole period, no less than the head sentence, should be properly proportionate to the gravity of the crime”. See also R v Monks (2019) 133 SASR 182 [91].

31. Having regard to s 47 of the Sentencing Act, the circumstances of what is undoubtedly very serious offending whilst on parole, and the personal circumstances to which we have referred, including the appellant’s difficulties reintegrating into the community, in this case we would fix a non-parole period of six years.

32. The sentence and the non-parole period should commence from 22 February 2018 when the appellant was taken into custody. 

33. In these circumstances, we would order:

    1.   The appeal is allowed and the sentence imposed by the sentencing Judge is set aside and quashed.

    2.   In the independent exercise of this Court’s sentencing discretion:

    2.1the appellant is sentenced for the three subject offences to a sentence of imprisonment of five years, six months and 19 days, cumulative on the unexpired balance of the earlier sentence, making a total head sentence of nine years, two months and 11 days;

    2.2pursuant to s 47 of the Sentencing Act, we would fix a non-parole period of six years;

    3.   The head sentence and the non-parole period will commence from 22 February 2018.