Noble v Police

Case [2014] SASC 156

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

NOBLE v POLICE

[2014] SASC 156

Judgment of The Honourable Justice Sulan

22 October 2014

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT

Appellant charged with aggravated assault and aggravated theft.  He pleaded guilty and was sentenced to 21 months' imprisonment with a non-parole period of nine months.  Appeal on the grounds that the sentence was manifestly excessive and that the Magistrate erred by failing to suspend the sentence.

Held (allowing the appeal):

1  An appeal court will not interfere with the exercise of a discretion unless error is demonstrated.

2  An appellate court should not set aside an order made in the exercise of a discretion on the ground that too much or too little weight has been given to a relevant consideration unless the failure to give appropriate weight really amounts to a failure to exercise the discretion actually entrusted to the court, and not bare a conclusion that an apeal court would have exercised the discretion differently.

3  An appeal court needs to view this ground of appeal with considerable caution.  Particular caution should be taken where the assessment of weight to be given to relevant factors are liable to be affected by seeing and hearing the parties.

4  Imposing a custodial rather than non-custodial sentence may result in a manifestly excessive sentence.  However, it does not follow that a complaint that a judge has failed to suspend a sentence is necessarily a particular of the complaint that a sentence is manifestly excessive.

5  Sentence set aside and appellant re-sentenced.

Criminal Law Consolication Act 1935 (SA) s 20(3)  s 134; Magistrates Court Act 1991 (SA) s 5, s 42; Statutes Amendment (Court Efficiency Reforms) Act 2012 (SA); Summary Procedures Act 1921 (SA) s 108(1); Criminal Law (Sentencing) Act 1988 (SA) s 19(3), s 38(1), referred to.
Police v Chilton [2014] SASCFC 76; Skinner v King (1913) 16 CLR 336; Lacey v Attorney-General (QLD) (2011) 242 CLR 573; House v The King (1936) 55 CLR 499; R v Sidlow (1908) 1 Cr App R 28; Storie v Storie (1945) 80 CLR 597; Blunt v Blunt (1943) AC 517; Lovell v Lovell (1950) 81 CLR 513; Gronow v Gronow (1979) 144 CLR 513; Mallet v Mallet (1984) 156 CLR 605; Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621; R v Wong (2001) 207 CLR 584; R v Horstmann [2010] SASC 103; R v Kentwell [2014] HCA 37; Bugmy v The Queen (2013) 249 CLR 571; Carroll v The Queen (2009) 83 ALJR 579; Hili v The Queen (2010) 242 CLR 520; Dinsdale v The Queen (2000)…

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Noble v Police [2014] SASC 156
Case
[2014] SASC 156
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CaseChat Overview and Summary

In Noble v Police, the appellant, Noble, sought to appeal against his sentence for aggravated assault and aggravated theft. The primary judge had imposed a sentence of two years and six months imprisonment, reduced to one year and nine months on account of Noble’s plea of guilty. The appeal was dismissed by the South Australian District Court and Noble sought further review in the South Australian Supreme Court. The central issue was whether the primary judge had erred in the exercise of his discretion in imposing the sentence, and if so, whether it was appropriate for the appellate court to interfere. The court needed to determine if the sentence was manifestly excessive or inadequate and whether there had been a wrongful exercise of discretion.

The court examined the principles established in previous cases, particularly House v The King, Skinner v The King, and Storie v Storie. It was noted that the appellate court may intervene if it is satisfied that no weight, or insufficient weight, had been given to relevant considerations or if an injustice has been done. The court found that the primary judge had considered an irrelevant matter, namely the typical court in which such offences are dealt, which influenced the sentence. This constituted a wrongful exercise of discretion. The court concluded that the sentence should be set aside and a new sentence imposed, taking into account the mitigating factor of the guilty plea.

In conclusion, the South Australian Supreme Court allowed the appeal and set aside the sentence imposed by the primary judge. The court imposed a new sentence of one year and nine months imprisonment, reduced from two years and six months on account of the defendant’s plea of guilty, with a non-parole period of nine months. The sentence was to be suspended upon the defendant entering into a bond to be of good behaviour for a period of 24 months, with supervision by a community corrections officer and conditions for community service and residence. The court did not interfere with the primary judge’s orders regarding the estreatment of the suspended sentence bond.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It is to be noted, however, that the analysis of the bases for reviewing an exercise of discretion in House v King did not end with the above passage. The majority continued:[13]But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar). See, further, Skinner v. The King and Whittaker v. The King.In the present case we think we are unable to interfere with the sentence imposed by his Honour Judge Lukin if we apply the principles we have stated.[Citations omitted.][Underlining is mine.][13] House v The King (1936) 55 CLR 499, 505. In dismissing the appeal, the majority held that there were no grounds for interfering with the sentence under review in that case. Importantly, and consistent with the observations in R v Sidlow[14] cited in their reasons, the majority said:[15]In the circumstances we have stated we do not think that we can say that the sentence, although severe, was unreasonable or clearly unjust, and there is no other ground for saying that it arose from error of fact or of law, or failure to take into account any material consideration, or from giving undue weight to any circumstance or matter.[Underlining is mine.][14] (1908) 1 Cr App R 28. In that case Lord Alverstone LCJ at 29 observed:…the Court would not interfere with a sentence unless it was apparent that the judge at the trial had proceeded upon wrong principles, or given undue weight to some of the facts proved in evidence. It was not possible to allow appeal because individual members of the Court might have inflicted a different sentence, more or less severe.[15] House v The King (1936) 55 CLR 499, 507. It is clear that the majority in House v King considered that the giving of undue weight to a relevant consideration could amount to a basis for interfering with the exercise of a discretion. In the earlier decision of Skinner v The King, Barton A.C.J observed:[16]It follows that a Court of Criminal Appeal is not prone to interfere with the Judge's exercise of his discretion in apportioning the sentence, and will not interfere unless it is seen that the sentence is manifestly excessive or manifestly inadequate. If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the Judge has acted on a wrong principle, or has clearly overlooked, or undervalued, or overestimated, or misunderstood, some salient feature of the evidence, the Court of Criminal Appeal will review the sentence; but, short of such reasons, I think it will not. [Underlining is mine.][16] (1913) 16 CLR 336, 340.

Evidence

Evidence Before The Court

In the earlier decision of Skinner v The King, Barton A.C.J observed:[16]It follows that a Court of Criminal Appeal is not prone to interfere with the Judge's exercise of his discretion in apportioning the sentence, and will not interfere unless it is seen that the sentence is manifestly excessive or manifestly inadequate. If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the Judge has acted on a wrong principle, or has clearly overlooked, or undervalued, or overestimated, or misunderstood, some salient feature of the evidence, the Court of Criminal Appeal will review the sentence; but, short of such reasons, I think it will not. [Underlining is mine.][16] (1913) 16 CLR 336, 340. In a number of subsequent decisions the High Court approved and further refined the principles enunciated by the majority in House v The King. In Storie v Storie,[17] the High Court considered the functions of an appellate court on reviewing an appeal from a discretionary order. The Judge at first instance refused a mother’s application for custody of her child and her appeal to the Full Court of the Supreme Court of Victoria was subsequently dismissed. The majority of the High Court (Latham CJ, Rich, Starke, Dixon and Williams JJ, McTiernan J dissenting) held that, although the making of the order was a matter of discretion, the order dismissing the wife’s application should be set aside because due weight had not been given to all considerations material to the welfare of the child.[17] (1945) 80 CLR 597. In considering the principles according to which an appellate court should exercise its powers upon appeal in a matter in which a judge has exercised a discretion, Latham CJ cited with approval the observations of the House of Lords in Blunt v Blunt.[18] Latham CJ stated:[19]In Blunt v. Blunt the same question was again considered, and citations were made from Osenton's Case . Viscount Simon L.C., referring to the circumstances in which an appeal may successfully be brought against the exercise of the Divorce Court's discretion, said:—“If it can be shown that the Court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal.”His Lordship then quoted a statement in Osenton's Case to the effect that the appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion exercised by the Judge, but said that “if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations … then the reversal of the order on appeal may be justified.”In this case I apply the principles established by the decisions in the House of Lords that where an appellate court is reviewing an order made in the exercise of a discretion conferred by law the appellate court may reverse the order either if it is satisfied that no weight, or that no sufficient weight, has been given to relevant considerations, or if it is satisfied that an injustice has been done by the order appealed against.[Citations omitted.][Underlining is mine.][18] (1943) AC 517.[19] Storie v Storie (1945) 80 CLR 597, 600.

Decision

Reasons for decision

Although the Magistrate correctly identified the maximum penalty that could be imposed in respect of count 2, he considered that the offences would usually be dealt with in the District Court, as one of them was a major indictable offence. In my view, this was an irrelevant matter for the Magistrate to have considered and, accordingly, the sentence should be set aside. I do not consider that s 5(9) of the Summary Procedures Act 1921 (SA) operates to preclude this finding.Conclusion I would set aside the sentence imposed by the Magistrate in respect of the offences of aggravated assault and aggravated theft. I would impose a sentence of one year and nine months’ imprisonment reduced from two years and six months on account of the defendant’s plea of guilty. I would fix a non-parole period of nine months. I would suspend that sentence upon the defendant entering into a bond to be of good behaviour for a period of 24 months. I would order that he be under the supervision of a community corrections officer and obey the lawful directions including in respect to any counselling that the officer considers appropriate. I would also order that he perform 100 of community service within 12 months and that during that period he remain at his residential address during the hours of 9 pm and 5 am unless to avert the risk of injury or death to himself or others, or to obtain urgent essential medical treatment. I would not interfere with the Magistrate’s orders with respect to estreatment of the suspended sentence bond.Post script Since preparing these reasons I have considered the judgment of Gray J in Robinson v Police.[43] I indicate that I agree with those reasons.[43] [2014] SASC 155.

Ratio Decidendi

Legal Principle Established

In considering the principles according to which an appellate court should exercise its powers upon appeal in a matter in which a judge has exercised a discretion, Latham CJ cited with approval the observations of the House of Lords in Blunt v Blunt.[18] Latham CJ stated:[19]In Blunt v. Blunt the same question was again considered, and citations were made from Osenton's Case . Viscount Simon L.C., referring to the circumstances in which an appeal may successfully be brought against the exercise of the Divorce Court's discretion, said:—“If it can be shown that the Court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal.”His Lordship then quoted a statement in Osenton's Case to the effect that the appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion exercised by the Judge, but said that “if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations … then the reversal of the order on appeal may be justified.”In this case I apply the principles established by the decisions in the House of Lords that where an appellate court is reviewing an order made in the exercise of a discretion conferred by law the appellate court may reverse the order either if it is satisfied that no weight, or that no sufficient weight, has been given to relevant considerations, or if it is satisfied that an injustice has been done by the order appealed against.[Citations omitted.][Underlining is mine.][18] (1943) AC 517.[19] Storie v Storie (1945) 80 CLR 597, 600. Latham CJ concluded that sufficient weight had not been afforded to the consideration of parental care and allowed the appeal. He said:[20]In my opinion, when the order sought by the mother was refused, sufficient weight was not given to the profound importance of giving a child parental care, affection and control, where that is possible, in a suitable home. This is an element which is of the greatest significance in relation to the welfare of a young child.[20] Storie v Storie (1945) 80 CLR 597, 603. See also; Rich J at 605. In Lovell v Lovell,[21] the High Court again considered the grounds upon which interference with the exercise of a discretion is permissible. That case also concerned the custody of a child. The primary judge refused a mother’s application for custody of her child. The decision was overturned by the Full Court of the Supreme Court of Victoria. The majority of the High Court (Latham CJ, McTiernan and Kitto JJ, Webb J dissenting) allowed the appeal on the ground that the primary judge had not erred in the exercise of his discretion in refusing the wife’s application and there was no ground on which a Court of Appeal was warranted in disturbing his decision.[21] (1950) 81 CLR 513.