Nadebaum v Police (No 2) - [2020] SASC 23

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NADEBAUM v POLICE (NO 2)
[2020] SASC 23
Judgment of The Honourable Justice Lovell
17 February 2020
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
The appellant was sentenced in the Magistrates Court to a term of imprisonment for a number of offences committed between 2015 and 2018. The appellant is a person of borderline intelligence and has a psychiatric disability. She appealed against her sentence on the basis that it was manifestly excessive due to errors made by the Magistrate. The appeal was allowed.
The appellant is resentenced to a term of imprisonment of 15 months. The non-parole period is fixed at 8 months. The term of imprisonment is suspended upon the appellant entering into a bond to be of good behaviour for a period of 18 months with certain conditions.
Sentencing Act 2017 (SA) s 3, s 4, s 10, s 26, s 96; Criminal Law Consolidation Act 1935 (SA) s 269C; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Nadebaum v Police [2019] SASC 102; R v McNamara (2009) 105 SASR 38; Greig v Police [1999] SASC 392, considered.

NADEBAUM v POLICE (NO 2)
[2020] SASC 23
LOVELL J.
Overview

Jenna Nadebaum, the appellant, was sentenced in the Magistrates Court to a term of imprisonment of one year, five months and 15 days with a non-parole period of 10 months for various offences committed between 2015 and 2018. The appellant appealed the sentence on the ground that the Magistrate erred by failing to apply the principle of diminished responsibility and by failing to give sufficient weight to the principle of rehabilitation. The appellant submitted that this error resulted in a sentence which was manifestly excessive. I allowed the appeal and heard submissions on resentence. This judgment is the resentencing of the appellant.
The Offending
I refer to the circumstances of the offending as set out in my judgment allowing the appeal.[1]
Section 269C of the Criminal Law Consolidation Act 1935 (SA)
[1] Nadebaum v Police [2019] SASC 102 at [10] - [21].
The appeal raised the issue of whether the appellant was mentally competent to commit some of the offences to which she had pleaded guilty.
As set out in the appeal judgment, the appellant committed the relevant offending between April 2015 and August 2018.
In her report of 20 January 2018, Dr Lim considered that the appellant was not “completely unable” to control her conduct pursuant to s 269C(1)(c) of the Criminal Law Consolidation Act 1935 (SA) and therefore did not support a “mental impairment defence”. The appellant disputed Dr Lim’s opinion and Dr Jennings, who was then the appellant’s treating psychiatrist, prepared a report. In his report of 16 November 2018, Dr Jennings similarly concluded that a mental impairment defence could not be maintained. Against this background, the appellant pleaded guilty to all…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nadebaum v Police (No 2)

Details

AGLC: Nadebaum v Police (No 2) [2020] SASC 23
Case: [2020] SASC 23
Decision Date: 17 February 2020

CaseChat Overview and Summary

Nadebaum v Police (No 2) involved an appeal against the sentencing of the appellant for multiple offences. The appellant was convicted of multiple crimes committed over several years and was sentenced in the Supreme Court of South Australia. The central issue in this appeal was whether the sentence imposed was appropriate given the appellant's multiple convictions, her good conduct while on bail, and her previous compliance with a release on licence. The respondent argued that the appellant should not be permitted to serve her sentence in the community without strict conditions.

The court considered the principles established in previous cases such as R v McNamara and R v Major, which emphasised that when sentencing for multiple offences, the court should first determine the sentence for each offence and then decide whether the sentences should run concurrently or cumulatively. The court also noted the statutory requirement under s 26 of the Sentencing Act 2017 (SA) that the total sentence must reflect the total criminality involved and must not be unduly burdensome. The primary purpose of sentencing, as set out in ss 3 and 4 of the Act, is to protect the safety of the community, with secondary purposes including punishment, accountability, denunciation, recognition of harm, deterrence, and rehabilitation.

The court concluded that while the appellant had demonstrated good conduct on bail and compliance with a previous release on licence, the cumulative nature of her offending warranted a term of imprisonment. The court decided that a suspended sentence or an intensive correction order was not appropriate given the appellant's history of offending and the need to ensure public safety and deterrence. The court re-sentenced the appellant, taking into account the principles of sentencing and the specific circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

LOVELL J

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Ratio Decidendi

Legal Principle Established

Established by: LOVELL J

Ms Kleinig, counsel for the respondent, submits that a term of imprisonment is warranted. As to how that sentence is served, the respondent is not opposed to a suspended sentence or an intensive correction order. Ms Kleinig submits that, despite the appellant’s good performance on supervised bail and on a previous release on licence, the appellant should not be permitted to serve her sentence in the community without strict conditions.Consideration I must sentence the appellant afresh. The appellant is to be sentenced for multiple offences, committed over several years. As such, s 26 of the Sentencing Act 2017 (SA) (“the Act”) is relevant. It provides:26—Sentencing for multiple offences(1)If a person is to be sentenced by a court for a number of offences, the court may sentence the person to the 1 penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates. (2)However, if any of the offences for which the person is being sentenced is a prescribed designated offence, subsection (1) does not apply to the sentencing of the person for that offence (but nothing in this subsection affects the operation of subsection (1) in respect of the other offences). (3)In this section— prescribed designated offence has the same meaning as in section 96. Section 26 is in near identical terms to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (now repealed). In R v McNamara[2],Vanstone J discussed the proper application of s 18A:[3]The Court of Criminal Appeal has consistently held that, in applying s 18A of the Sentencing Act, the sentencing judge should, as a general rule, first determine what sentence each separate offence would attract. Then, consideration should be given to whether the sentences would be concurrent or cumulative: R v Major (1998) 70 SASR 488 at 490 (Doyle CJ) and 497 (Olsson J); R v Place (2002) 81 SASR 395 at 432 (Doyle CJ, Prior, Lander and Martin JJ). Following that method has the advantage of exposing the sentencing process to scrutiny by an appellate court… Having said that, I do not suggest that a precise or arithmetical approach is called for. Ultimately, the sentence imposed under s 18A must reflect the total criminality involved: Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 85 per King CJ; R v Siozios (2004) 236 LSJS 88 per Perry J at [4], Doyle CJ agreeing.[2] (2009) 105 SASR 38.[3] R v McNamara (2009) 105 SASR 38 at 43 [27]. Section 26 of the Act informs the structure of the sentence but not its content. In sentencing the appellant for multiple offences, I must ensure that the total effect of the sentence is not unduly burdensome.[4][4] Sentencing Act 2017 (SA) s 10(1)(c). I must have regard to the purposes of sentencing a defendant as set out in ss 3 and 4 of the Act. The primary purpose is to protect the safety of the community (whether as individuals or in general). The secondary purposes are to ensure the defendant is punished for the offending behaviour, is held accountable to the community for the offending behaviour, to publicly denounce the offending behaviour, to publicly recognise the harm done to the community and to any victim of the offending behaviour, to deter the defendant and others in the community from committing offences and to promote rehabilitation.