O'NEILL v The Queen

Case [2020] SASCFC 78

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

O'NEILL v THE QUEEN

[2020] SASCFC 78

Judgment of The Court of Criminal Appeal

(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Hughes)

26 August 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES

Appeal against sentence.

The appellant pleaded guilty to one count of aggravated serious criminal trespass in a place of residence, one count of aggravated assault causing harm, and one count of aggravated robbery contrary to subsections 170(1), 20(4) and 137(1) of the Criminal Law Consolidation Act 1935 (SA) respectively.

On 8 September 2017, the appellant, as part of a joint criminal enterprise with at least four co-offenders, forced entry to the home of the victim. The offenders bound the victim and a visitor, and assaulted the victim while demanding money and property. Several items of property were stolen, including motor vehicles. The appellant, a former member of the Mongols Motorcycle Club, told police he had agreed to participate in the offending at the request of RM in order to repay a drug related debt owed to AM, who was RM’s brother and the then national sergeant of the gang. After pleading guilty, the appellant provided cooperation to police in the form of giving statements and an offer to give evidence at the trial of the co-accuseds. The appellant was sentenced to a single penalty of four years, nine months and 20 days imprisonment to be served cumulatively on existing sentences giving rise to a total period of imprisonment of nine years and five months.  The pre-existing non-parole period of two years was increased to five years. In passing this sentence, the Judge gave a sentencing discount of 30 per cent for cooperation and 10 per cent for the guilty pleas.           

The sole ground of appeal was that the sentence imposed is manifestly excessive, as the Judge erred in applying a discount pursuant to section 37 of the Sentencing Act 2017 (SA) of only 30 per cent; this was unreasonable being a discount outside the range available to the Judge in the circumstances.

Held per Nicholson J (Stanley and Hughes JJ agreeing) dismissing the appeal:

1. The Judge erred in making a declaration under section 37 of the Sentencing Act 2017 (SA) and in purporting to sentence the appellant according to its terms.

2. The Judge’s decision to apply a discount of 30 per cent was well within the discretionary range available to the Judge and not unreasonable, whether at common law or under section 37 in the circumstances of this case.

3.  The head sentence and non-parole period are not manifestly excessive.

4.  Appeal dismissed. 

Criminal Law Consolidation Act 1935 (SA) s 5, s 20, s 83E, s 137, s 170; Sentencing Act 2017 (SA) s 26, s 36, s 37,…

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O'NEILL v The Queen [2020] SASCFC 78
Case
[2020] SASCFC 78
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CaseChat Overview and Summary

The appeal in *O'Neill v The Queen* concerned a challenge to the sentence imposed on the appellant, who had pleaded guilty to charges including aggravated serious criminal trespass and aggravated assault causing harm. The appellant argued that the sentencing judge erred by applying a discount of only 30 per cent under section 37 of the relevant Act, contending this discount was unreasonably low and outside the available range for the circumstances. This was the sole basis for the appeal, which was heard by Stanley, Nicholson, and Hughes JJ.

The central legal issue before the court was whether the 30 per cent discount applied under section 37 of the Act, in addition to any common law discount for the guilty plea, was manifestly excessive. This required the court to consider the proper application of section 37, which allows for a reduction in sentence for cooperation with law enforcement agencies in combating serious and organised criminal activity, provided certain conditions are met, including exceptional circumstances and significant public interest. The court also had to assess whether the appellant's cooperation warranted a greater reduction than that afforded by the sentencing judge.

The court reasoned that while the appellant's cooperation was of moderate value to the authorities, it occurred in circumstances that exposed him to significant physical consequences and the risk of future retribution. Despite this, the court found that the 30 per cent discount, when added to the discount for the guilty plea, constituted a substantial reduction and was well within the discretionary range available to the sentencing judge, both at common law and under section 37. The possibility that other judges might have allowed a larger discount did not, in itself, render the total discount of 40 per cent unreasonable or the resulting sentence manifestly excessive.

Consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

In support of the ground of manifest excess, the appellant contended that the Judge erred by applying a discount pursuant to section 37 of the Act of only 30 per cent; this was unreasonable[6] being a discount outside the range available to the Judge in the circumstances. The appellant contended that section 37 is to be construed as providing for a discount, in circumstances where section 37 applies, beyond that which would have been available at common law. This was the only basis relied on as establishing manifest excess. [6] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505.Background to and circumstances of offending The appellant is 34 years of age and was 31 at the time of this offending. He has a significant history of prior offending, and was subject to both a bail agreement and a good behaviour bond at the time of the offending. He is a former member of the Gypsy Jokers Motorcycle Club and more recently the Mongols Motorcycle Club (Mongols). He ceased being a member of the latter shortly prior to the offending. The Judge accepted that the appellant had incurred a drug related debt. The Judge made no finding as to the amount of the debt nor how this debt originally came about. However, the appellant, when giving evidence, explained to the effect that he had been unable to repay the debt, as it had accumulated, because monies owed to him from selling drugs had not been collected when he went into prison. The debt was owed to AM, at the time, the national sergeant of the Mongols. AM was said, I infer euphemistically, to have required payment as soon as possible. The appellant agreed to join the enterprise which led to the subject offending, with the understanding that his participation would amount to payment of some or all of this debt. The appellant said that he was asked to participate by a co-accused, RM, the younger sister of AM. The appellant gave this evidence.Q.And you were approached by someone to commit these offences for which you pleaded guilty.A.Yes, I was.Q.Can you explain to his Honour how that came about.A.I was approached by [RM]. She already knew I owed her brother money and that’s how it came to the events of what happened with [the victims].Q.Where did that happen.A.Two Wells.Q.It wasn’t done over the phone or anything.A.At the start of it it was; to approach each other yes, it was.Q.And did you speak to [AM] as part of this.A.No, no, I didn’t.Q.But it was your view that he was behind it.A.He was behind it, yes.Q.And so what did you do.A.I approached his sister because I was asked to.Q.Approached who.A.Approached [RM].QYes.A.And she’d asked me to help her out to move some vehicles and she made it quite clear that I still owed some money and that’s why I’d be helping.Q.So what did you do.A.I asked a couple of friends help me move some vehicles. In the early hours of Friday 8 September 2017,[7] at least five masked persons, including the appellant, forced entry into the home of the victim, JA. The group comprised four males and one female, some wearing balaclavas and others wearing face masks with a skeleton print (count 1 - aggravated serious criminal trespass in a place of residence). Upon entering, the group detained JA, along with a female visitor, NS, who was staying over that night. JA was tasered and then punched in the face by different members of the group. JA’s hands were bound with tape and he was repeatedly punched and kicked by members of the group, including being “jabbed” in the back with a baseball bat (count 2 – aggravated assault causing harm). [7] Approximately 2.30-3.00am.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J (dissent)
I take the view that the appellant’s cooperation was and will be relatively moderate in terms of value to the authorities. However, it occurs in circumstances that have caused the appellant significant physical consequences and may lead to further physical retribution and at the least significant anxiety concerning the risk of future retribution. A substantial discount was warranted. Nevertheless, 30 per cent in addition to the discount for pleas, is substantial. In my view, it was well within the discretionary range available to the Judge whether at common law or under section 37 in the circumstances of this case.[27] The possibility that other judges may have allowed more does not of itself render the total discount of 40 per cent unreasonable and the consequent head sentence and non-parole period manifestly excessive.[27] In arriving at this conclusion, I have had regard to the relevant considerations identified in the authorities, including R v B, TB; R v J-M, AM [2013] SASCFC 40, R v Bray; R v Malatesta [2017] SASCFC 104 and R v Zhang [2017] SASCFC 5; (2017) 265 A Crim R 113.Conclusion I would dismiss the appeal. HUGHES J: For the reasons given by Nicholson J, I would also dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by:

The Director did not cross appeal on the applicability of section 37 with respect to the appellant. However, this issue was raised during the submissions on appeal. The challenge to the application of section 37 was dealt with in detail in the Director’s responding written submissions. Counsel for the appellant indicated that he was not embarrassed by the late raising of this issue. Section 37 provides as follows.37—Reduction of sentences for cooperation etc with law enforcement agency (1)A court may declare a defendant to be a defendant to whom this section applies if the court is satisfied that the defendant has cooperated or undertaken to cooperate with a law enforcement agency and the cooperation— (a) relates directly to combating serious and organised criminal activity; and (b) is provided in exceptional circumstances; and (c) contributes significantly to the public interest. (2)In determining sentence for an offence or offences to which a defendant has pleaded guilty or in respect of which a defendant has been found guilty, the court may, if the defendant is the subject of a declaration under subsection (1), reduce the sentence that it would otherwise have imposed by such percentage as the court thinks appropriate in the circumstances. (3)In determining the percentage by which a sentence is to be reduced under this section, the court must have regard to such of the following as may be relevant: (a) if the defendant has pleaded guilty to the offence or offences—that fact and the circumstances of the plea; (b) the nature and extent of the defendant's cooperation or undertaking; (c) the timeliness of the cooperation or undertaking; (d) the truthfulness, completeness and reliability of any information or evidence provided by the defendant; (e) the evaluation (if any) by the authorities of the significance and usefulness of the defendant's cooperation or undertaking; (f) any benefit that the defendant has gained or is likely to gain by reason of the cooperation or undertaking; (g) the degree to which the safety of the defendant (or some other person) has been put at risk of violent retribution as a result of the defendant's cooperation or undertaking; (h) whether the cooperation or undertaking concerns an offence for which the defendant is being sentenced or some other offence, whether related or unrelated (and, if related, whether the offence forms part of a criminal enterprise); (i) whether, as a consequence of the defendant's cooperation or undertaking, the defendant would be likely to suffer violent retribution while serving any term of imprisonment, or be compelled to serve any such term in particularly severe conditions; (j) the nature of any steps that would be likely to be necessary to protect the defendant on release from prison; (k) the likelihood that the defendant will commit further offences, and may have regard to any other factor or principle the court thinks relevant.(4)In this section— serious and organised criminal activity includes any activity that may constitute a serious and organised crime offence within the meaning of the Criminal Law Consolidation Act 1935.Included in section 5 of the CLCA is the following definition.serious and organised crime offence means—(a)an offence against Part 3B; or (b)an offence that— (i) is punishable by life imprisonment; or (ii) is an aggravated offence against a provision of this, or any other, Act, if it is alleged that the offence was committed in the circumstances where— (iii) the offender committed the offence for the benefit of a criminal organisation, or 2 or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or (iv) in the course of, or in connection with, the offence the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was in fact associated with, the organisation);