Paul Anthony Pight v R No. SCCRM 95/7 Judgment No. 5046 Number of Pages 10 Criminal Law and Procedure (1995) 64 Sasr 215

[1995] SASC 5046

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL COX(1), OLSSON(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - judgment and punishment - sentence - Appeal against sentence on ground that it is manifestly excessive - discussion of effect of Statutes Amendment (Truth in Sentencing) Act 1994 - sentences longer than five years involve discretion of Parole Board - focus on developments which occur post sentencing - some degree of reduction in general levels of head sentences and non-parole periods is mandated - sentence excessive in the context of the current sentencing regime - appeal allowed. Statutes Amendment (Truth in Sentencing) Act 1994 s21; Criminal Law (Sentencing) Act 1988s12 and Criminal Law Consolidation Act 1935 s302. The Queen v Dube and Knowles (1987) 46 SASR 118, applied.

HRNG ADELAIDE, 20 March 1995 #DATE 21:4:1995 #ADD 24:5:1995

Counsel for appellant:     Mr Paul J Rice

Solicitors for appellant:    Ms C M O'Connor

Counsel for respondent:     Mr Paul J Rofe QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 COX J The circumstances of this appeal are described in the reasons of Olsson J. which I have had the advantage of reading.

2. The Statutes Amendment (Truth in Sentencing) Act 1994, which came into operation on 1 August 1994, made two major changes that are relevant to this appeal. First, by repealing Part VII of the Correctional Services Act 1982 it abolished the system of sentence remissions. At the same time it amplified the procedure for dealing with breaches by a prisoner of prison regulations. Secondly, it modified the scheme under which a prisoner may be paroled at the expiration of his non-parole period. Formerly the Parole Board had to fix the conditions upon which parole would be granted but, subject to that, the prisoner had the right to be paroled in accordance with the court's sentence. The Board had no discretion in the matter. See s66 of the CorrectionalServices Act, 1982-1993. The new s66 leaves that scheme substantially unchanged in the case of a prisoner who is serving a total sentence of less than five years although, of course, there will be no reduction for remissions now. However, a prisoner who is serving a life sentence or a sentence or sentences that amount to five years or more no longer has the right to be released automatically, on the Board's conditions, upon the expiration of his non-parole period. He will be eligible for parole then, but whether he is granted it will depend on the discretion of the Board. Sub-section (4) of s67 sets out the matters to which the Board must have regard in determining a prisoner's application for release on parole. So, at least superficially, we are, under these ever-changing sentencing rules, back where we were in the early 1980s when the courts simply fixed, in effect, the minimum term of imprisonment actually to be served in prison and the Parole Board decided when thereafter the prisoner would be released on parole. Mr Rice submitted that, because of the latest amendments, the courts should not now assess a non-parole period for a long term prisoner in the expectation that the prisoner will simply be paroled on its expiration. Rather, it should assess a shorter non-parole period than that to allow for the possibility, perhaps even the expectation, that the prisoner's actual release on parole in accordance with the Board's discretionary order will occur substantially later than the expiration of the non-parole period fixed by the sentencing court. Otherwise, it is said, a prisoner is likely to find himself spending a longer time in custody than the court thought suitable in his case. The change we were urged to approve would amount to a revival of an earlier practice. We were referred to the Chief Justice's remarks in The Queen v Tio and Lee (1984) 35 SASR 146, at 147-8, as confirmation of the increase in the proportion of non-parole period to head sentence that generally followed the coming into operation of the Prisons Act Amendment Act 1983 which gave the courts the duty of fixing a non-parole period which entitled the prisoner to be released on its expiration (less remissions), subject only to his good behaviour in prison and the acceptance of the appropriate parole conditions. So, it is argued, on a reversion now to the statutory scheme that preceded the 1983 amendment, the proportion that the non-parole period bears to the head sentence in future should, as a general rule, be correspondingly reduced.

3. I do not accept this argument. In the first place, there is an important difference between the list of matters to which the Board was obliged to have regard in determining an application for parole under s42l of the Prisons Act as it was prior to 1983 (see Prisons Act Amendment Act 1981, s12) and the following list, in the new s67, that governs the Board's discretion now -
    "(a) any relevant remarks made by the court in passing
    sentence; and
    (b) the likelihood of the prisoner complying with the
    conditions of parole; and
    (c) where the prisoner was imprisoned for an offence or
    offences involving violence, the circumstances and gravity
    of the offence, or offences, for which the prisoner was
    sentenced to imprisonment but only insofar as it may assist
    the Board to determine how the prisoner is likely to behave
    should the prisoner be released on parole; and
    (d) the behaviour of the prisoner while in prison or on home
    detention; and
    (e) the behaviour of the prisoner during any previous
    release on parole; and
    (f) any reports tendered to the Board on the social
    background, the medical, psychological or psychiatric
    condition of the prisoner, or any other matter relating to
    the prisoner; and
    (g) the probable circumstances of the prisoner after release
    from prison or home detention; and
    (h) any other matters that the Board thinks are relevant."

4. Most of those paragraphs reproduce paragraphs of the earlier list without significant alteration. The 1981 analogue to par.(c), however, was contained in the following two paragraphs of the old s42l -
    "(b) the circumstances of the offence for which the prisoner
    was sentenced to imprisonment, and any matter taken into
    account by the court in determining sentence;

(c) the gravity of the offence;..."

5. That, in effect, simply repeated the court's sentencing remarks. However, by virtue of par.(c) of the present s67, the circumstances and the gravity of a prisoner's offence will now be relevant to his release on parole only where the offence involved violence and even then only to the extent to which it may indicate how the prisoner is likely to behave in the event of his release. This greatly reduced relevance of the prisoner's criminal history to his parole application harmonizes with the addition of the word "relevant" to par.(a) - relevant, I would infer, because they are the parts (if any) of the court's sentencing remarks that relate to matters specified in one or more of the other paragraphs of s67, most obviously par.(c).

6. Secondly, the operation of the new scheme has to be assessed in light of the abolition of the remissions system. Remissions were always seen as an incentive to good behaviour. Paragraph (d) of s67 is doubtless intended to provide, at least in part, a substitutionary sanction in that area.

7. It will be seen, then, that the Parole Board's discretion in determining an application by a prisoner for release on parole under the 1994 amendment is quite limited. The specified matters to which the Board must, and for that matter may, have regard are directed almost entirely to the prisoner's actual or likely personal condition or behaviour or circumstances while in prison or when he is released on parole, matters with which the sentencing court will not have been directly concerned and of which in any event its knowledge would necessarily have been incomplete, to say the least. One may conclude that the Board's role is now supplementary to that of the sentencing court. For the most part it will be dealing with actions taking place or circumstances occurring after the sentence was passed.

8. It should be noticed that the power of the sentencing court, on application by the Director of Public Prosecutions or the Chairman of the Parole Board, to extend a non-parole period has survived the latest changes: Criminal Law (Sentencing) Acts32(6). Such an extension may only be made for reasons directed to questions of behaviour and safety. See sub-s.(7) of s32. There would thus appear to be some duplication of function between the courts and the Parole Board in some respects. I do not think that this affects the general interpretation of the new parole provisions.

9. There is a third consideration that militates against the appellant's submission. I really do not understand how a sentencing court could sensibly estimate the amount of room, as it were, that it should appropriately leave in any particular case for the operation of the Parole Board's discretion in order to avoid (so the argument runs) the risk of the prisoner spending a longer time in custody before being paroled than the court thought appropriate. It is not as though it can be taken for granted that all long-term prisoners will have their release on parole postponed under s67. So the submission also founders for impracticability.

10. In my opinion, the method of the sentencing court in fixing a non-parole period is no different now from its method before the Truth in Sentencing Act came into operation. The court, in accordance with s32 of the Sentencing Act, will fix a non-parole period, both for short term and long term prisoners, that represents the part of the head sentence that, in the opinion of the court, should actually be served in prison. Generally speaking - there may possibly be exceptional cases - the court will not be concerned with what the Parole Board may or may not do when, five years or more in the future, it comes to consider a long term prisoner's application for release under s67.

11. I can express my views about the merits of the appeal in this case quite briefly. I do not think there is or ever has been a tariff for causing grievous bodily harm with intent to do grievous bodily harm. The crime has, like manslaughter, too big a range of seriousness for that, with the worst cases falling just short of attempted murder. An important factor will be the nature and extent of any permanent injuries. This was a dreadful case, with a young woman of 18 being badly disfigured for life when the appellant threw petrol over her and set fire to it, intending to cause her really serious harm. He was lucky to avoid a murder charge. He was just 20 years of age at the time and he had had an unfortunate upbringing. However, he also had convictions in 1992 and 1993 for assault. The second assault, indeed, was for an attack on a previous girlfriend. The present crime was the culmination of a lengthy period of violence on the appellant's part that evening which included beating up two other men and then assaulting and terrifying the eventual fire victim. The explanation for setting fire to her appears to have been a combination of jealousy and breathtaking arrogance - she was the appellant's girlfriend, she had (he thought) been out with someone else and he was going to show her who was master. He gave no indication of remorse. He committed this crime while on a suspended sentence bond under which he had already neglected to perform the prescribed community service. Had he been older I would not feel able join in any reduction of the sentence or the non-parole period. However, he was young and immature and, for that reason, I agree that the appeal should be allowed, the sentence reduced to ten years and the non-parole period to seven years.

JUDGE2 OLSSON J This is an appeal against a sentence imposed on the appellant on the ground that it is manifestly excessive.

2. Following a jury trial he was found guilty of the offence of causing grievous bodily harm with intent to do grievous bodily harm. The learned sentencing judge, having first revoked the suspension of a sentence of three months' imprisonment which had been imposed on the appellant on 21 July 1993 in respect of another offence, then sentenced him to a further 12 years' imprisonment, to be served concurrently with the three month term. He fixed a non parole period of eight years.

3. It is convenient, first, to direct attention to the relevant facts.

4. At time of sentencing the appellant was a young man aged twenty years. He had several prior convictions, two of them being for assault. The conviction which led to the suspended sentence was in respect of one such offence and arose from violence occasioned by the appellant to his then girlfriend. One condition of the suspension was a requirement that 160 hours of community service be performed within one year of the sentence. The appellant had failed to perform any of this.

5. The offence now under consideration was committed on 26 February 1994, at which time the appellant was in what seems to have been some form of relationship with his victim, a Miss Lane. The appellant, Miss Lane and certain other persons went to an hotel in the evening and there drank for a short time. They then commenced walking home, having purchased a flagon of port. Whilst en route some further drinking took place.

6. One of the male parties in the group told the appellant that another of the men present had expressed some sexual interest in Miss Lane, whereupon he was beaten up by the appellant. That conduct precipitated an epileptic fit in the victim, who had to be evacuated to hospital by ambulance. The appellant also assaulted another person named Little and occasioned him two black eyes.

7. Shortly afterwards the appellant observed what he assessed to be a "love bite" on Miss Lane's neck. He questioned her about it in an aggressive manner. She gave an explanation, which he did not accept; and he thereupon continued to cross examine her about it. In so doing he partly throttled her and pushed her over a fence.

8. Eventually he ordered her into Little's house, where he continued to question her. The appellant demanded that Little produce a knife with which to frighten Miss Lane, who continued to maintain her original explanation about the love bite. He then also punched a hole in the gyprock wall to further intimidate her.

9. When those actions failed to elicit any different explanation, the appellant told Little to get some petrol. The latter returned with what was said to be a tin with about a cup full of petrol in it. The appellant then threw the petrol over the upper portion of Miss Lane's body, she, by then, being thoroughly terrified.

10. Because Miss Lane could afford no explanation other than that earlier expressed by her, the appellant lit the petrol. As a consequence she sustained serious burns to the right side of her face, the anterior area of the neck and upper chest, both breasts, portion of the abdomen, the inner aspects of both arms, most of the right forearm and hand, the front and back of the left hand and most of the right leg. In total there was a mixed pattern of burns involving 25% of the total body surface, of which 20% were full thickness burns.

11. Miss Lane was subsequently subjected to operative and other medical treatment over a lengthy period of time, sustained excruciating pain and has been left with substantial permanent scarring. As is to be expected, she has also been left with serious psychological problems.

12. The learned sentencing judge had the benefit of a full pre-sentence report, a psychiatric report and evidence from a forensic psychologist. He noted that it seemed that the appellant exhibited no sense of remorse for what he had done.

13. The material placed before the court indicated that the appellant did not suffer from any diagnosable psychiatric condition. He was, however, assessed as having an IQ just above the moderately retarded range, was dyslexic and functionally illiterate. He had a long history of violent behaviour and alcohol abuse.

14. The learned sentencing judge was told that the appellant came from a home in which violence was the order of the day. His father was an alcoholic and abused him, his mother and his sibling. His schooling was punctuated by violent episodes with other children and he conceded that, when he got angry, he took it out on everyone.

15. It is small wonder that the learned sentencing judge described the appellant's offence as horrific and considered it necessary to impose a severe custodial sentence to both mark the enormity of the conduct in question and also to act as a deterrent to the appellant.

16. On the hearing of the appeal Mr Rice, of counsel for the appellant, whilst not attempting to minimise the seriousness of the offence, argued that the sentence imposed did not adequately recognise the impact of the Statutes Amendment (Truth in Sentencing) Act 1994 ("the Truth in Sentencing Act"), which had application to the situation before the learned sentencing judge.

17. It is trite to say that, prior to that enactment, sentencing proceeded upon the basis outlined by the Court of Criminal Appeal in The Queen v Dube and Knowles (1987) 46 SASR 118, by virtue of the then provisions of section 12(2) of the Criminal Law (Sentencing) Act, 1988. Because section 302 of the Criminal Law Consolidation Act, 1935 ("the CLCA") enjoined the courts, in fixing a sentence of imprisonment or non parole period, to have regard to remissions which could be earnt by a prisoner, it became necessary to increase general levels of head sentences and non parole periods by quite substantial amounts.

18. With the passage of the Truth in Sentencing Act both of the above statutory provisions were repealed with effect from 1 August 1994 and an entirely new sentencing regime was introduced. The non parole period effectively became the minimum period which a prisoner was required to serve before becoming eligible for parole. If the head sentence imposed was less than five years then the prisoner automatically became entitled to release on the expiry of the non parole period. If it was five years or more, the release after the expiry of the non parole period was in the discretion of the Parole Board, which was required, by section 67(4) of the CorrectionalServices Act, 1982 to have regard to a series of factors set out in the statute.

19. Transitional provisions of the Truth in Sentencing Act made the new provisions applicable to offences, such as that now under consideration, which were committed prior to the commencement of its provisions, but stipulated that:-
    "21. (1) A court, in fixing the term of a sentence of
    imprisonment or in fixing or extending a non-parole period,
    must, when considering sentences imposed before the
    commencement of this Act (but after the commencement of the
    Prisons Act Amendment Act (No 2) 1983) for comparable
    offences, take into account the abolition of the previous
    statutory scheme for remission of sentence."

20. It follows that this provision mandates some degree of reduction in general levels of head sentences and non parole periods, reasoning back from the general type of logic espoused in The Queen v Dube and Knowles. However, I do not accept the submission that this necessarily means a complete reversion to the standards which were applicable immediately prior to the enactment of section 302 of the CLCA.

21. In the first place the new sentencing regime is not entirely in pari materia with that which was in vogue prior to such enactment. Secondly, quite apart from the impact of that section, having regard to the factor of general deterrence and, in part, to community expectations generated by the nature and pattern of criminal offences in more recent times, there has been some level of general increase in sentence tariffs in relation to serious offences, quite separately and apart from any impact of section 302.

22. In the course of both this and other appeals heard during this sittings it has strenuously been argued that the fact that the non parole period is now a minimum period to be served and that, at least in respect of sentences of five years or more, a wide discretion is vested in the Parole Board, some significant discount should be factored into tariff levels to allow for that situation - it ought not merely to be a matter of removing the "grossing up" element written into sentences and non parole periods under the now repealed section 302 regime.

23. To my mind such a contention is unacceptable. Leaving aside recent general upward movements in sentencing tariffs, the practical net situation under the Truth in Sentencing Act is little different, in conceptual terms, from that which prevailed under section 302. Under that section it was presumed, for sentencing purposes, that most prisoners would qualify for full remissions and sentences were grossed up on that basis, in the knowledge that prisoners were, generally speaking, automatically entitled to release at the expiration of the stipulated non parole period. It was, however, open to the Crown to apply for an extension of the non parole period, if the conduct or circumstances of the prisoner warranted such a course.

24. As I have pointed out, under the new system prisoners with sentences less than five years remain entitled to virtual automatic release on expiry of the non parole period. Those with longer sentences are entitled to apply to have their situations positively reviewed six months prior to expiry of the non parole period. Whilst release is in the discretion of the Parole Board, that Board is required to have regard to these matters:-
    "(a) any relevant remarks made by the court in passing
    sentence; and
    (b) the likelihood of the prisoner complying with the
    conditions of parole; and
    (c) where the prisoner was imprisoned for an offence or
    offences involving violence, the circumstances and gravity
    of the offence, or offences, for which the prisoner was
    sentenced to imprisonment but only insofar as it may assist
    the Board to determine how the prisoner is likely to behave
    should the prisoner be released on parole; and
    (d) the behaviour of the prisoner while in prison or on home
    detention; and
     (e) the behaviour of the prisoner during any previous
    release on parole; and
    (f) any reports tendered to the Board on the social
    background, the medical, psychological or psychiatric
    condition of the prisoner, or any other matter relating to
    the prisoner; and
    (g) the probable circumstances of the prisoner after release
    from prison or home detention; and
    (h) any other matters that the Board thinks are relevant."

25. Whilst there is, in many respects, a similarity of areas of consideration with those stipulated in the pre-1983 legislation, the factor expressed as (c) above, does represent a quite different concept.

26. It will, at once, be seen that the focus is, essentially, on developments which occur with regard to the prisoner post sentencing; these being issues which, under the pre-existing regime, would have influenced the likely release date of a prisoner in any event.

27. The court must act upon the basis that the Parole Board will conscientiously approach its task and arrive at rational decisions in light of the factors properly to be taken into account.

28. It follows that, whilst the non parole period set is now a minimum period which excludes the old section 302 considerations, it is difficult to perceive how, in practice, it will result in a net situation which is so different from that which operated under the section 302 scheme that it manifestly calls for a substantial discounting from an "ungrossed up" figure.

29. The pre Dube and Knowles regime, of course, only operated for a brief (almost transitional) period between 1981-1983, during which time considerable instability and variations in sentences imposed can be seen in the data available. I do not consider that definitive assistance can be derived from that material, for present purposes, in any event.

30. Having regard to all of the considerations which I have identified it seems to me that, although, prior to 1 August 1994, the sentence presently under consideration could well have been justified, it must now be considered excessive in the context of the current sentencing regime.

31. Nevertheless, the offence in the present case was, undoubtedly, amongst the most serious categories of its type, in relation to an offence for which the prescribed maximum penalty is life imprisonment. Not only was the nature of the crime totally abhorrent, but its outcome has left the victim with long term, if not permanent, serious physical and psychological scars. A very substantial custodial sentence is plainly called for, notwithstanding the young age of the offender. He is clearly a person who is unable to control his anger and, in view of his history of violence, the factors of personal, as well as general, deterrence must loom as paramount considerations. With an offence of this gravity, at the top end of the spectrum of seriousness, as to which the appellant demonstrates no present real appreciation of its enormity or contrition, there are very real practical limits to the extent to which mitigating factors related to his unfortunate domestic background may properly be taken into account. Further, at the present time, there are no indications that a significant period of parole is likely to prove beneficial in his rehabilitation.

32. I would allow the appeal for the purpose of reducing the head sentence to 10 years and the non parole period to seven years, both to run from the date stipulated by the learned sentencing judge.

JUDGE3 MULLIGHAN J I have had the advantage of reading the reasons of Cox J and Olsson J. I agree with the outcome of the appeal which they propose and there is nothing which I wish to add except to say that I agree with the analysis of Cox J of the relevant legislation and his interpretation of it.