Power v The Queen - [2020] SASCFC 17

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
POWER v THE QUEEN
[2020] SASCFC 17
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Lovell)
11 March 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
Application to appeal against a non-parole period.
At the appeal hearing the Court granted permission to appeal, allowed the appeal, set aside the applicant’s non-parole period of 22 months and fixed a non-parole period of 13 months in lieu. These are the reasons for that decision.
On 8 September 2014, the applicant was ordered to serve a sentence of imprisonment of seven years, three months and three weeks with a non-parole period of three years and 10 months, backdated to 11 October 2013, for a large number of offences committed between June 2012 and May 2013.
The applicant was released on parole on 18 December 2017. Three days later he committed further offences, which cancelled his parole from that date, with three years, one month and 10 days of his sentence still to serve. In addition, the applicant was sentenced for the additional offending to imprisonment for four months and six days, to be served cumulatively on the cancelled unexpired period of parole as at 21 December 2017, the date the applicant was taken into custody. This resulted in a new head sentence of three years, five months and 16 days commencing 21 December 2017. A new non-parole period of five months was set.
On 19 November 2018, the applicant was again released on parole. On 24 March 2019, the applicant was returned to custody, following breaches of his parole conditions, with two years, four months and five days of his then head sentence still to serve. On 16 September 2019, the Judge allowed the applicant’s application for a new non-parole period to be set and fixed a new non-parole period of 22 months backdated to 24 March 2019.
The applicant appeals against the new non-parole period of 22 months on the following grounds:
1.      The learned Judge erred in fixing such a high non-parole period.
2.      The non-parole period was disproportionate to the breaches of parole and having regard to the head sentence remaining to be served.
3.      The non-parole period was too high and a lower non-parole period was needed for [the applicant] to get support on release on parole.
Held, per Nicholson J (Kourakis CJ and Lovell J agreeing), allowing the appeal:
1.      Permission to appeal granted on all grounds.
2.      The 22 month non-parole period was manifestly excessive and is set aside.
3.      A non-parole period of 13 months commencing 24 March 2019 is fixed in lieu.
Sentencing Act 2017 (SA) s 47; Criminal Law (Sentencing) Act 1988 (SA) s 32, referred to.
House v The King (1936) 55…

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 Power v The Queen

Details

AGLC: Power v The Queen [2020] SASCFC 17
Case: [2020] SASCFC 17
Decision Date: 11 March 2020

CaseChat Overview and Summary

The applicant, Power, sought to appeal against a non-parole period of 22 months fixed by a sentencing judge. The appeal was heard by the Full Court of the Supreme Court of South Australia, which granted permission to appeal and allowed the appeal, setting aside the original non-parole period and fixing a new period of 13 months.

The central legal issue before the Court was whether the original non-parole period of 22 months was manifestly excessive, disproportionate to the applicant's breaches of parole and head sentence, and whether it adequately considered the need for support upon release. The applicant contended that the sentencing judge erred by not taking into account various relevant matters when fixing the non-parole period.

The Court applied the principles established in *R v Roberts* and *R v Palmer* regarding the fixing of non-parole periods. These principles dictate that the purpose of a non-parole period is to determine the optimal time for rehabilitation, with relatively more weight given to this aspect. The exercise of discretion involves balancing punitive and protective purposes against rehabilitation prospects, informed by factors such as antecedents, previous responses to corrections, contrition, and capacity to overcome criminogenic factors. Crucially, when parole has been breached, the court must also consider the gravity of the breaching conduct, as this can adversely affect rehabilitation prospects and necessitate deterrence. However, these considerations are factors to be weighed in the overall sentencing discretion. The Court found that the 22-month non-parole period was manifestly excessive in light of these principles and the applicant's circumstances, including his difficult personal history, intellectual disability, and expressed desire for rehabilitation.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of appeal in the application for permission to appeal are as follows.1.The learned Judge erred in fixing such a high non-parole period.2.The non-parole period was disproportionate to the breaches of parole and having regard to the head sentence remaining to be served.3.The non-parole period was too high and a lower non-parole period was needed for [the applicant] to get support on release on parole.These grounds were supplemented with more particular complaints in the written and oral submissions before the Court. However, and whilst the applicant contended that the Judge had erred by not taking into account various relevant matters, the grounds can be seen as raising, and I joined in the orders of the Court on the basis that, the new non-parole period was manifestly excessive.Further background The applicant is an Aboriginal man, 27 years of age. In 2011, he was sentenced to imprisonment for nine months commencing 31 August 2011 at which time he was 19 years old. He completed that term of imprisonment in mid-2012 but was taken back into custody on 11 October 2013 with respect to further offending. He has been in custody since that date save for two short periods of parole amounting to just over four months. The two breaches of parole and the sentencing consequences for the applicant have been set out earlier. The Magistrate who sentenced the applicant following the first breach of parole adopted a relatively lenient approach, particularly with respect to the fixing of a new non-parole period of five months. That was readily understandable given various of his Honour’s observations which placed the applicant’s new offending in context and addressed some of his difficult personal circumstances. His Honour’s remarks included the following.[Y]ou are just 25 years of age so you are still a young man but from everything I have read and from what was said two weeks ago, for someone so young you have been through a great deal of trouble and a great deal of sadness during your life. Much more than most during their whole life. You have no contact with your father and very little with your mother, certainly in recent times and you went through a number of very serious traumas when you were just a young lad going into your early teenage years.You were in a serious car accident when you were twelve, you tried to take your life when you were thirteen, and then at fourteen when playing with petrol you burnt yourself very severely and you spent months and months in hospital and had lots of skin grafts. It must have been a very, very painful experience.You were in trouble with the police when you were in your teenage years and you started using various types of drugs and you spent times in custody both before you turned eighteen, as a youth, and since you have been an adult. These offences occurred against a background that is explained in the psychological report. The report tells us a number of things, as you explained as well last time with [your counsel].You have a number of issues that you need help with: anxiety, depression and also low self-esteem and a lack of self-identity, which is talked about in the report.You also have a significant intellectual disability; that does not mean that you are not responsible for what you do when you get in trouble with police, but it does mean you tend to make very impulsive decisions. These offences occurred in the way that you probably explained best of all two weeks ago. You said it was a “stupid” decision. You wanted to bring the car back to the place where you were staying at. You did not have the money to have it towed and so you decided to drive. You should not drive because you were under a disqualification which was imposed back in 2014. When you saw police and the police saw you, you did not stop; but the pursuit did not go for very long.Then you ran off from the police and hid in the car. That is where the charge of illegal interference arises; and I accept that the reason for getting into the car was just to try and hide from the police; not to steal the car or steal from them.That happened just three days after you were released on parole. You talked about your frustration about that because, you said in the report and two weeks ago; you tried to be a good prisoner and you got out on parole and that finished so soon after you getting in trouble.The report says, and it is quite clear from everything that was talked about two weeks ago, when you go back out to the community you are going to need a lot of help and a lot of support, and unfortunately, you do not have as much family support as some others. You have got your sister and you want to live with your sister.. . . .Having said that, you are still a young man. The report says that and you said very clearly two weeks ago that you want to change and I am going to bear that in mind when imposing the penalty.A real concern is that if, when you come out of custody next time, you do not make the right decisions and do not have enough support and you go back into custody again, that you might become what is sometimes called institutionalised, in other words you become more comfortable living in a gaol than living out in the community.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

The Judge’s remarks on sentence were brief. Her Honour referred in part to the applicant’s sentencing background and made reference to his difficult personal circumstances. The essence of her Honour’s reasons for imposing a new non-parole period of 22 months was as follows.I accept what [your counsel] tells me, that is, that you want to do better and I accept that it is probably in everybody's interests for you to be released into the community whilst under supervision, but your compliance with parole conditions has been poor.I note you spent most of your adult life in custody. Drug abuse apparently remains a problem and you are said to have very limited family or community support. Your risk of reoffending, the report tells me, is high.In my view, your best chance for success will be for you to remain in custody and take advantage of any programs available to you to give you some chance of remaining in the community once you are released.Consideration In R v Roberts,[2] this Court summarised, with reference to previous authority, the principles to be applied when setting a new non-parole period under subsection 32(3) of the Criminal Law (Sentencing) Act 1988 (SA) (now subsection 47(3) of the Sentencing Act 2017 (SA)). It is sufficient to set out just some of that discussion.[3][2] [2016] SASCFC 41; (2016) 125 SASR 40 at [15]-[27].[3] At [21]-[22], [25], [27].The purpose of fixing a non-parole period is to determine the optimum time when the prisoner will respond to parole and make the most of the opportunity it allows for rehabilitation after serving the minimum period necessary to meet the punitive and protective purposes of punishment. It is for that reason that relatively more weight is given to rehabilitation in fixing the non-parole period. The starting point for fixing a non-parole period is the length of the head sentence. It is a different discretionary exercise to fixing the head sentence, notwithstanding that it is informed largely by the same considerations. Nonetheless the discretion demands a balancing of competing sentencing objectives. In R v Palmer, Kourakis CJ said: The need for punishment and protection will generally result in non-parole periods of between one half and three quarters of the head sentence. Where in that range, or in special cases where outside that range, the non-parole period is fixed will depend on a realistic balancing of positive and negative indications of the offender’s prospects of rehabilitation…The safer course is to fix a lower or higher proportion by reference to the usual range depending on whether the offender has relatively poor or good indications for rehabilitation. That assessment must be based largely on factors like the offender’s antecedents, previous responses to community corrections orders, degree of contrition and demonstrated willingness and capacity to overcome criminogenic factors.. . . .These 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.. . . .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. (Footnotes omitted)