R v A, D

Case [2011] SASCFC 5 3 March 2011

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v A, D
[2011] SASCFC 5
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan, The Honourable Justice Anderson, The Honourable Justice White and The Honourable Justice David)
3 March 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - SENTENCING AS ADULT OR CHILD AND IMPRISONMENT
Respondent pleaded guilty to murder - respondent 14 years of age at the time of the offence - sentenced as an adult - sentenced to life imprisonment - non-parole period of six years - whether Judge erred in the application of s 32 and s 32A of the Criminal Law (Sentencing) Act 1988 (SA) - whether mandatory minimum non-parole period provisions apply to youths sentenced as adults - correct interpretation of the mandatory minimum non-parole period provisions - whether non-parole period manifestly inadequate - application for permission to appeal granted - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 3A, s 31A, s 31A(1), s 32, s 32(1)(a), s 32(5), s 32(5)(ab), s 32(5)(ba), s 32(10), s 32(10)(ba), s 32(10)(d), s 32A, s 32A(2)(b), s 32A(3); Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA); Young Offenders Act 1993 (SA) s 3, s 4(1), s 29(1), s 29(1)(a), s 29(1)(b), s 29(1)(c), s 29(4); Statutes Amendment (Sentencing of Young Offenders) Act 1996 (SA), referred to.
R v Ironside (2009) 104 SASR 54; A, MC v Police (2008) 102 SASR 151; R v QTV (2003) 87 SASR 378; R v Barnett (2009) 198 A Crim R 251; R v Harkin [2010] SASCFC 39; R v Jones [2010] SASCFC 58; The Queen v Shrestha (1991) 173 CLR 48; The Queen v Stewart (1984) 35 SASR 477, discussed.

R v A, D
[2011] SASCFC 5
Court of Criminal Appeal: Doyle CJ, Duggan, Anderson, White and David JJ

DOYLE CJ, DUGGAN, ANDERSON AND WHITE JJ: On 12 November 2008 the respondent A stabbed and killed a youth aged 14 years in the course of a fight. A also was 14 years of age.
In April 2010 A pleaded guilty in the Supreme Court to a charge of murder. When sentenced in September 2010 he was 16 years of age.
A Judge imposed the mandatory head sentence of life imprisonment. He fixed a non-parole period of six years (taking effect from 17 November 2008 when A was first taken into custody).
The Director of Public Prosecutions has applied for permission to appeal against the sentence. The Director submits that the Judge erred in law in his application to the…

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 R v A, D

Details

AGLC: R v A, D [2011] SASCFC 5
Case: [2011] SASCFC 5
Decision Date: 3 March 2011

CaseChat Overview and Summary

The parties to this appeal were the Crown (respondent) and A (appellant), a 14-year-old offender who had pleaded guilty to murder. The dispute concerned the sentencing of A, who was sentenced as an adult to life imprisonment with a non-parole period of six years. The appeal sought to challenge whether the sentencing judge had erred in the application of sections 32 and 32A of the *Criminal Law (Sentencing) Act 1988* (SA), specifically regarding the applicability of mandatory minimum non-parole period provisions to youths sentenced as adults and the correct interpretation of those provisions. The Court of Criminal Appeal of South Australia heard the matter.

The central legal issues before the court were: (1) whether the mandatory minimum non-parole period provisions in the *Criminal Law (Sentencing) Act 1988* (SA) applied to a juvenile offender who was sentenced as an adult; and (2) the correct interpretation and application of these mandatory minimum provisions, particularly in relation to the existence and effect of "special reasons" for reducing such periods. The court also considered whether the non-parole period imposed was manifestly inadequate.

The court acknowledged the complexity and differing judicial opinions surrounding the interpretation and application of the new sentencing provisions, which were enacted as part of a policy to be "tough on crime." These provisions significantly altered the approach to fixing non-parole periods, requiring comparisons that did not involve like with like. The court noted that a consistent majority opinion had not emerged in previous cases, with various views expressed on whether special reasons for reduction could arise in any case or only at the lower end of objective seriousness, the scope of discretion to reduce the minimum period, the continued relevance of the minimum period after special reasons are found, and the range of possible reductions. Despite these complexities, the court ultimately dismissed the appeal, finding no error in the sentencing judge's application of the law.

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

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Ratio Decidendi

Legal Principle Established

The new provisions were enacted as part of the Executive Government’s policy of being “tough on crime”. That policy, embodied in the new provisions enacted by Parliament, will result in a significant increase in the non-parole period in many cases, and an increase in the average length of non-parole periods.Consideration of submissions The new provisions have been considered by the Court of Criminal Appeal in R v Ironside [2009] SASC 151; (2009) 104 SASR 54; in R v Barnett [2009] SASC 332; (2009) 198 A Crim R 251; in R v Harkin [2010] SASCFC 39 and in R v Jones [2010] SASCFC 58. In these cases a consistent majority opinion as to the construction and application of the new provisions has not emerged. Different opinions have been expressed. This is not surprising having regard to the difficult task that the new provisions set for a sentencing court. In R v Ironside Doyle CJ referred to a number of the difficulties that arise: at [39]-[49]. There is no need to repeat what Doyle CJ said. It suffices to say that the new provisions require an approach to fixing a non-parole period that departs substantially from the approach that prevailed before, and which involves the making of comparisons that do not involve comparing like with like. In his written outline Mr Muscat SC, counsel for A, summarised some of the differing opinions that have been expressed by members of this Court. There is no need to decide whether or not the summary captures all of the differing opinions expressed, and whether or not it is completely accurate. It gives a helpful sketch of the differences. We now set out that summary, incorporating Mr Muscat’s footnotes to the cases. We do not necessarily endorse his attribution of opinions to particular Judges. The different views are as follows:(a)That in considering whether special reasons exist for reducing the mandatory minimum non-parole period for a serious offence against the person those special reasons:(i) can only arise in the case of offences at the lower end of the range of objective seriousness (R v Ironside at [56] per Doyle CJ, R v Barnett at [52] per Vanstone J and R v Harkin at [40] per Anderson and Kelly JJ).(ii) can be considered in any type of case (R v Jones at [53]-[54] per Anderson J, [109]-[110] per David J and [172]-[173] per Peek J).(b)That if special reasons are found to exist, the discretion to reduce the mandatory minimum non-parole period:(i) is limited to a consideration of only those factors and not the full range of factors which are normally taken into account in determining the length of a non-parole period (R v Ironside at [47]-[48] and [82] per Doyle CJ and [180] per Kourakis J).(ii) the full range of factors ordinarily relevant to the fixing of a non-parole period can be considered (R v Barnett at [30]-[32] per Gray J, [46]-[50] per Vanstone J, [92] per Kourakis J and R v Jones at [111] per David J and [174]-[178] per Peek J).(c)That once special reasons are found to exist:(i) the mandatory minimum non-parole period is still relevant to the extent of the reduction to be made (R v Ironside at [37]-[38], [47] per Doyle CJ and [181] per Kourakis J, R v Barnett at [50] per Vanstone J, [73]-[74] and [92] per Kourakis J, R v Harkin [36] per Anderson and Kelly JJ, R v Jones [73], [80] per Anderson J and [187] per Peek J).(ii) the mandatory minimum non-parole period does not need to be further considered (R v Barnett [31]-[32] per Gray J and R v Jones [111] per David J).(d)That the range of the possible reduction:(i) is limited to a relatively small degree (R v Ironside [179], [181] and [183] per Kourakis J, R v Barnett [49] per Vanstone J).(ii) is not so limited (R v Jones at [81] per Anderson J (for murder) and [195] per Peek J (where it is disapproved or qualified)).(e)That different considerations may apply under section 32(5)(ab) and section 32(5)(ba) (R v Jones at [81] per Anderson J).

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Citations

R v A, D [2011] SASCFC 5

Most Recent Citation

R v Nugent [2012] SADC 147

Cases Citing This Decision

R v Singh [2024] SASCA 81
Citation 1 (Para 12)

…as no basis to impose a non-parole period shorter than the mandatory minimum, and there was no challenge on appeal to that finding. [10] R v A, D (2011) 109 SASR 197 at [41]-[44] per Doyle CJ (with whom Duggan, Anderson and White JJ agreed) cited in R v Hallcroft (2016) 126 SASR 415 at [56]-[58] per Kourakis CJ (Peek,…
Dickey v R [2023] NZCA 2
Citation 2

…[72]See R v A [2011] SASCFC 5, (2011) 109 SASR 197.…
R v Peet [2018] SASCFC 91
Citation 3 (Para 20)

…that must be made. The court does not exercise a discretion at large. [13] For example, R v Ironside (2009) 104 SASR 54; R v A,D (2011) 109 SASR 197; R v Hallcroft (2016) 126 SASR 415. [14] (2011) 109 SASR 197 at [35]-[39].…
R v Li [2016] SASCFC 152
Citation 4 (Para 12)

…The application of s 32A was first considered in R v A, D .[21] Doyle CJ, Duggan, Anderson and White JJ said:[22] [21] [2011] SASCFC 5, (2011) 109 SASR 197. [22] [2011] SASCFC 5 at [33]-[43], (2011) 109 SASR 197 at 204-205. The court must consider whether to fix a non-parole period that is longer, the same as or s…
R v Hallcroft [2016] SASCFC 137
Citation 5 (Para 12)

…rs only. The court is not able to compare like with like. The process is not easy to explain. But this is the statutory task. [5] (2011) 109 SASR 197 at [35]-[38].…
C, S M v Police [2016] SASC 167
Citation 6 (Para 5)

…the gravity of the crime.[21] [20] R v QTV (2003) 87 SASR 378, [49]. [21] A,MC v Police (2008) 102 SASR 151, [27]; cited with approval in R v A,D (2011) 109 SASR 197, [57]. Section 3 of the Young Offenders Act requires the court to assume that the youth has the potential to be rehabilitated. Much greater emphasis will…
R v A [2016] SASCFC 66
Citation 7 (Para 6)

…y s. 7. [29] R v QTV [2003] SASC 424 at [47], (2003) 87 SASR 378 at 388. [30] [2008] SASC 279 at [25], (2008) 102 SASR 151 at 157. [31] [2011] SASCFC 5 at [57], (2011) 109 SASR 197 at 208. [32] R v QTV [2003] SASC 424 at [48], (2003) 87 SASR 378 at 388. [33] R v J (1998) 102 A Crim R 157 at 164. [34] (1979) 22 SAS…
R v Humbles [2014] SASCFC 91
Citation 8 (Para 10)

…. The fixing of a non-parole period is a decision about time, not about the proportion of the non-parole period to the head sentence.[6] [6] R v A, D (2011) 109 SASR 197, 206.…
W, CD v Police; M, BC v Police [2014] SASCFC 72
Citation 9 (Para 17)

…eflect the gravity of the crime.[9] [8] R v QTV (2003) 87 SASR 378, [49]. [9] A,MC v Police (2008) 102 SASR 151, [27]; cited with approval in R v A,D (2011) 109 SASR 197, [57].…
R v B, TB; R v J-M, Am [2013] SASCFC 40
Citation 10 (Para 2)

…nal Law ( Sentencing) Act 1988 (SA) and the mandatory minimum non-parole period of 20 years’ imprisonment in the case of murder does not apply. [1] (2011) 109 SASR 197.…
R v B, FG [2013] SASCFC 24
Citation 11 (Para 17)

…n the mandatory minimum sentence, then parity does not apply and the co‑offender, even though less involved, must receive the same sentence. [17] (2011) 109 SASR 197.…
R v P, A [2013] SASCFC 3
Citation 12 (Para 22)

…he appellant was being sentenced as an adult, this was still the proper approach.[32] [31] R v McGaffin [2010] SASCFC 22 at [69]. [32] R v A, D [2011] SASCFC 5 at [59], [68]; (2011) 109 SASR 197 at 210, 212.…
R v Nugent [2012] SADC 147
Citation 13 (Para 3)

…urality in R v A, D as saying anything to the contrary.[22] [19] [2011] SASCFC 61 [20] [2012] SASCFC 71, (2012) 61 MVR 195 [21] At [18] [22] R v A, D (2011) 109 SASR 197…
R v Frencken [2012] SASCFC 71
Citation 14 (Para 11)

…Counsel took the Court to R v A, D (2011) 109 SASR 197. There, the sentence under consideration was one fixed for an offence of murder committed by a youth. Where one or more of what I might call “qualifying matters” under s 32A(3) were present, the relevant question was said to be this: [42]The court has to ask itsel…
R v T, JJ [2012] SASCFC 62
Citation 15 (Para 14)

…to which the Judge referred. The Judge’s approach accorded with the requirements of the YOA as explained in decisions such as R v A, D [2011] SASCFC 5; (2011) 109 SASR 197 at [56]-[60]. Consideration of Appeal…
CNK v The Queen [2011] VSCA 228
Citation 16

…ffenders who have been dealt with under such different regimes.[59] [58][2003] VSCA 223. [59]Ibid [44]–[45] (emphasis added). See also R v A, D [2011] SASCFC 5, [80].…
R v Narayan [2011] SASCFC 61
Citation 17 (Para 22)

…non-parole period shorter than the mandatory period. The process to be followed was described by Doyle CJ, Duggan, Anderson and White JJ in R v A, AD [2011] SASCFC 5 (the Court was there dealing with the offence of murder which attracted a mandatory period of 20 years’ imprisonment): [40]In considering whether a n…
R v Hansen [2011] SASCFC 10
Citation 18 (Para 26)

…characterised in that way. That does not preclude a lower non-parole period being fixed,[20] but it is a very relevant consideration. [20] R v A, D [2011] SASCFC 5 at [46].…

See all citing cases →

Cases Cited

R v Jones [2010] SASCFC 58
Citation 1 (Para 27)

…ronside [2009] SASC 151; (2009) 104 SASR 54; in R v Barnett [2009] SASC 332; (2009) 198 A Crim R 251; in R v Harkin [2010] SASCFC 39 and in R v Jones [2010] SASCFC 58. In these cases a consistent majority opinion as to the construction and application of the new provisions has not emerged. Different opinions have b…
R v Harkin [2010] SASCFC 39
Citation 2 (Para 27)

…Court of Criminal Appeal in R v Ironside [2009] SASC 151; (2009) 104 SASR 54; in R v Barnett [2009] SASC 332; (2009) 198 A Crim R 251; in R v Harkin [2010] SASCFC 39 and in R v Jones [2010] SASCFC 58. In these cases a consistent majority opinion as to the construction and application of the new provisions has not…
R v Barnett [2009] SASC 332
Citation 3 (Para 27)

…The new provisions have been considered by the Court of Criminal Appeal in R v Ironside [2009] SASC 151; (2009) 104 SASR 54; in R v Barnett [2009] SASC 332; (2009) 198 A Crim R 251; in R v Harkin [2010] SASCFC 39 and in R v Jones [2010] SASCFC 58. In these cases a consistent majority opinion as to the construction…
R v Ironside [2009] SASC 151
Citation 4 (Para 27)

…The new provisions have been considered by the Court of Criminal Appeal in R v Ironside [2009] SASC 151; (2009) 104 SASR 54; in R v Barnett [2009] SASC 332; (2009) 198 A Crim R 251; in R v Harkin [2010] SASCFC 39 and in R v Jones [2010] SASCFC 58. In these cases a consistent majority opinion as to the construction…
The Queen v Stewart [2009] NZCA 117
Citation 5 (Para 24)

…A non-parole period is the minimum term of imprisonment required to meet the punitive and protective purposes of punishment: The Queen v Stewart (1984) 35 SASR 477 at 477 King CJ. The fixing of a non-parole period should reflect a decision about what is an appropriate period before the offender can be released. The f…
A, MC v Police [2008] SASC 279
Citation 6 (Para 29)

…on of a youth's education or employment; (e) a youth's sense of racial, ethnic or cultural identity should not be impaired. In A, MC v Police [2008] SASC 279; (2008) 102 SASR 151 White J summarised the general approach that has been taken to the interaction between the YOA and the Sentencing Act (referred to by hi…
R v QTV [2003] SASC 424
Citation 7 (Para 30)

…The same approach was taken by this Court in the earlier decision of R v QTV [2003] SASC 424; (2003) 87 SASR 378. The Court (Prior, Bleby and Anderson JJ) there said: [47]Section 3 of the Young Offenders Act is the section which must form the cornerstone of the process of sentencing a youth to whom the Act applies…
R v Shrestha [1991] HCA 26
Citation 8 (Para 1)

…oyle CJ in R v Ironside at [26]-[27]. However, it is relevant to bear in mind the observations by Deane, Dawson and Toohey JJ in The Queen v Shrestha (1991) 173 CLR 48 at 68-69: All of the considerations which are relevant to the sentencing process, including antecedents, criminality, punishment and deterrence, are…

Legislation Cited

Criminal Law (Sentencing) Act 1988 (SA) 3A
2 mentions (from Para 4)
Young Offenders Act 1993 (SA) 3
2 mentions (from Para 3)
Children’s Protection and Young Offenders Act 1979 (SA)
1 mention (from Para 29)
Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA)
1 mention (from Para 22)
Statutes Amendment (Sentencing of Young Offenders) Act 1996 (SA)
1 mention (from Para 2)
Youth Court Act 1993 (SA)
1 mention (from Para 30)