Kearney v Police - [2017] SASC 130

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KEARNEY v POLICE
[2017] SASC 130
Judgment of The Honourable Justice Lovell
14 September 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
Appeal against fixing of a non-parole period.
The appellant was sentenced to serve a 12 month non-parole period on his own application to fix a non-parole period pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 in the Magistrates Court.
The appellant submitted that the sentencing Magistrate erred in the factors taken into account in fixing the non-parole period. He further submitted that the non-parole period set was manifestly excessive.
Held (dismissing the appeal):
1. The Magistrate identified the matters concerning him in fixing the period and no error has been demonstrated.
2. The non-parole period of 12 months is within the Magistrate’s discretion.
Criminal Law (Sentencing) Act 1988 s 32, referred to.
R v Roberts (2016) 125 SASR 40; Hili v The Queen (2010) 242 CLR 520, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"Sentencing", "Non-Parole Period"

KEARNEY v POLICE
[2017] SASC 130
Magistrates Appeal: Criminal
LOVELL J:

Daniel Allen Kearney (“the appellant”) had his parole revoked for breaches of good behaviour and drug conditions on 16 March 2017. On 2 May 2017 Ms Frances Nelson QC, Chairperson of the Parole Board, provided a report to the Magistrate. The report related to the appellant’s breach of parole conditions and outlined his offending that gave rise to the conviction, including charges of resist police, carry an offensive weapon (x 2), drive or use motor vehicle without consent (x 2), dishonestly take property (x 3), serious criminal trespass (x 3), possess article to commit offence, aggravated assault causing harm, escape from custody and drive dangerously to cause police pursuit (“the relevant offences”). The appellant was sentenced on 26 May 2017, upon his application, to serve a 12 month non-parole period on an outstanding sentence of two years and eight months for a series of offences. The appellant submits that the 12 month non-parole period is manifestly excessive, and that the sentencing Magistrate erred in a number of respects in fixing the non-parole period.
Background
The appellant was sentenced on 30 October 2013 to three years and 11 months with a non-parole period of two years backdated to 6 September 2013. On 20 January 2015 he was released from custody on home detention. On 28 August 2015 the appellant escaped from custody, before handing himself in to the Police on 2 September 2015. On 5 November 2015 he was sentenced for the relevant offences to five years and 11 months, with a non-parole period of two years and six months, also backdated to 6 September 2013. This was made up of the three years and 11 month sentence of 2013 and an additional two years imprisonment arising from the November 2015 offending to be served cumulatively.
On 9 March 2016 the appellant was released on parole. On 16 March 2017 the parole board cancelled his parole pursuant to s 74 of the Correctional Services Act 1982 (SA) for breaches on 23 November 2016 of good behaviour and drug conditions. This made the appellant liable to serve two years, eight months and 16 days of cancelled parole from 25 November 2016, set to expire 9 August 2019. The Court has a power to set a non-parole period under s 32(3) of the Criminal Law (Sentencing) Act 1988 (SA).
On May 26 2017 the Magistrate heard an application by the appellant to fix a non-parole period under s 32(3).
Non-Parole Period
The same Magistrate sentenced the appellant in 2015 and 2017. In his reasons for decision dated 26 May 2017, the Magistrate noted that in making his decision he was assisted by both counsel, material provided by defence counsel and the letter of Ms Nelson QC.
The Magistrate highlighted that the appellant disputed elements of Ms Nelson’s letter, specifically the top paragraph of page two of that letter, where it is alleged that the appellant had been violent toward his then partner. The Magistrate commented on the appellant’s rejection of these allegations:
Notwithstanding the lack of acceptance of the contents of that paragraph, I do not think that causes me any particular concern and certainly does not stop me from proceeding to fix what I consider to be an appropriate non-parole period.[1]
[1] Reasons for Decision dated 26 May 2017.
Specific reference was made to a rehabilitative program called ‘Making Changes’ by both Ms Nelson QC in her report and the Magistrate. It was understood on the day of fixing the non-parole period that the appellant was fully prepared to undertake the program.
The Magistrate fixed a non-parole period of 12 months under s 32(3) of the Criminal Law (Sentencing) Act 1988 (SA) for the remaining sentence of two years, six months and six days.
Appeal Grounds
The two grounds of appeal allege a process error and an outcome error.
Process Error
It is submitted by the appellant that in accepting the letter of Ms Nelson QC – namely the Magistrate’s remark that “I accept the accuracy of everything contained in that letter”[2] – the Magistrate was in error. The appellant submits the Magistrate was in error when fixing the non-parole period by taking into account that the appellant:
1Had a history of unacknowledged domestic violence;
2Had acted violently towards Ms Godson;
3Had monitored Ms Godson’s social media and phone;
4Had administered drugs to Ms Godson, and;
5Had attempted to kill Ms Godson and threatened her with a large carving knife.
[2] Sentencing Remarks [2].
The appellant submitted that the Magistrate sentenced the appellant on the basis that the appellant had a history of unacknowledged domestic violence, acted violently toward Ms Godson, monitored her phone and social media, administered drugs to her, had attempted to kill her and threatened her with a large knife. This was despite the appellant’s unequivocal denial of the aforementioned acts.
The Magistrate noted the appellant’s lack of acceptance of these issues:
I do not intend to repeat the contents of the letter from the Parole Board. I do note that counsel inform me that some aspects of the alleged behaviour on his part were not accepted by the defendant, and specific reference was made to the contents of the top paragraph on p.2. Notwithstanding the lack of acceptance of the contents of that paragraph, I do not think that causes me any particular concern and certainly does not stop me from proceeding to fix what I consider to be an appropriate non-parole period.
The appellant contends that despite the acknowledgement of the denial, the general acceptance of the letter, the statement that the sentence was on the basis of “everything contained” in the letter of Ms Nelson QC, and the reference to the appellant’s “various issues” demonstrated that the Magistrate took into account the admitted and denied factors.
The respondent submitted that the report of the Parole Board outlines the appellant’s offending, lack of engagement with rehabilitative programs, positive drug tests, history on parole and failure to address his criminogenic factors. The respondent argued that it was appropriate for the Magistrate to take into account all of these factors when fixing the non-parole period. Moreover, it was submitted that the Magistrate’s acknowledgement of the appellant’s denial of the particularised allegations of domestic violence qualifies any other reference to the contents of the Parole Board report.
During sentencing submissions the Magistrate stated that he “would place little if any weight on the allegations made by Ms Godson.” The issues concerning the Magistrate were the appellant’s three dirty urine samples and history on parole.[3] The sentencing remarks of the Magistrate must be read in that context.[4] The Magistrate’s expression of acceptance of the letter in the second paragraph of his sentencing remarks was perhaps too inclusive. However, a proper reading of his remarks including the subsequent acceptance of the denial shows that the Magistrate ignored the impugned evidence.
[3] Affidavit of Patrick Alan Dawes para 10.15.
[4] R v Corlett [2017] SASCFC 112, [65]-[75] (Lovell and Doyle JJ).
I would dismiss this ground of appeal. The only remaining question is whether the sentence imposed is manifestly excessive.
Outcome Error
The appellant submitted that the Magistrate erred when sentencing in a number of respects. He submitted that the Magistrate failed to give sufficient weight to his prospects of rehabilitation. It was submitted that the Magistrate gave too much weight to deterrence, his prior history on parole, his criminal antecedents and the protection of the community. Ultimately, the appellant submitted, these failures led to the Magistrate imposing a non-parole period which was manifestly excessive.
Principles on Appeal
The Magistrate in his remarks referred to the decisions of Wilson[5] and Roberts.[6]
[5] R v Wilson [1999] 203 LSJS 459.
[6] R v Roberts (2016) 125 SASR 40.
The Court of Criminal Appeal in Roberts undertook an extensive review of the relevant authorities. These principles are relevant to factors the Magistrate was entitled to take into account in fixing a new non-parole period. The Court identified a number of relevant considerations relevant to fixing non-parole periods, both including periods of unexpired parole and generally. The Court held:[7]
[The] authorities demonstrate that, subject to one additional factor, the principles applicable to fixing a non-parole period as part of the exercise of the sentencing discretion in imposing an original sentence apply also to the exercise of the sentencing discretion in fixing a new non-parole period pursuant to s 32(3) after cancellation of a prisoner’s parole as a result of a breach of parole. The additional factor is that, in fixing a new non-parole period in these circumstances, it is necessary that the court also have regard to the gravity of the breaching conduct that has resulted in the cancellation of the parole.
(Citations Omitted)
[7] Ibid [23]-[25].
The factors considered included: the prospects of rehabilitation on parole, gravity of the offences on which imprisoned and then paroled, gravity of breaching offences or breach of condition, deterrence, and an assessment of the punitive, deterrent and preventative purposes of punishment.
The Court highlighted the relevance of the breaching conduct and how that may inform considerations of deterrence and prospect of rehabilitation in the context of fixing a new non-parole period:[8]
As was observed by Kourakis J in Foley v Police, in R v Wilson the offender breached parole by breaching a designated condition. In those circumstances, it was understandable that particular attention needed to be given to the seriousness of the breach. The gravity of the breaching offence may inform both the need for deterrence and the prospect of rehabilitation in fixing a new non-parole period. At least two factors affecting the fixing of the non-parole period when parole has been breached suggest that it will be a higher proportion of the head sentence in those cases than otherwise. First, the breach itself will usually reflect adversely on the prospects of rehabilitation. Secondly, the sentencing court must have regard to the need to deter parolees from breaching their parole. However, these considerations are merely factors that must be weighed in the balance in the exercise of the sentencing discretion. This is consistent with the approach Stanley J took in R v Earley.
(Citations omitted)
[8] Ibid [27].
The general approach to the issue of manifest excess is equally applicable to both sentence and non-parole period.[9] When considering the question of manifest excess, a Court must consider if in the light of the facts the sentence imposed was unreasonable or plainly unjust.[10] Ordinarily factors to be considered in relation to manifest excess include the maximum penalty for the offence, the standards of sentencing customarily observed for that offending, where the criminal conducts sits in the scale of seriousness of crimes of that type and the personal circumstances of the offender.[11]
[9] R v Rowe [2016] SASCFC 33, [31].
[10] Markarian v The Queen (2005) 228 CLR 357, 25 (Gleeson CJ, Gummow and Callinan JJ).
[11] R v Rowe [2016] SASCFC 33, [30] citing R v Scarpantoni [2013] SASCFC 120, [81]; R v Morse (1979) 23 SASR 98.
The approach to be adopted when considering the question of manifest excess was discussed in Hili v The Queen where the Court said:[12]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”
… But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.
(Citations Omitted) (Emphasis added)
[12] (2010) 242 CLR 520, 538-539 at [59]-[60]; R v Cecchin [2017] SASCFC 109, [44]-[46] (Lovell J).
Factors to be considered when deciding the question of whether a sentence is manifestly excessive include the maximum penalty for the offence, the standards of sentencing customarily observed for that offending, where the criminal conducts sits in the scale of seriousness of crimes of that type and the personal circumstances of the offender.[13]
[13] R v Morse (1979) 23 SASR 98.
This Court, on appeal, is not to interfere with a sentencing discretion unless an error was made in exercise of that discretion.[14] Similarly, this Court is not to interfere merely because it would have exercised its discretion in a manner different from the way in which the sentencing Magistrate did.[15]
[14] House v The King (1936) 55 CLR 499.
[15] Markarian v R (2005) 228 CLR 357.
Conclusion
The non-parole period was fixed on the basis of three positive urine test results[16] returned to corrections and a questionable parole record. There was emphasis placed on the ‘Making Changes’ correctional program, and concerns expressed by both the Parole Board and the Magistrate about the appellant’s history of poor responses. The Magistrate identified the matters that concerned him. No error has been demonstrated.
[16] The appellant was tested on 13 occasions. Three tests were positive for illicit substances.
A 12 month non-parole period in the context of the remaining sentence could be seen to be at the upper end of the acceptable range. However in my view it remains within the Magistrate’s sentencing discretion. I would dismiss this ground of appeal.
Order
1Appeal dismissed.