R v Angus - [2004] SASC 317

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ANGUS
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)
8 October 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Application by Director of Public Prosecutions for leave to appeal against sentence - respondent pleaded guilty to one count of manslaughter and one count of assault occasioning actual bodily harm - The Judge imposed a total sentence of 10 years with a non-parole period of 6 years 6 months - whether head sentence imposed adequate - whether discount for plea of guilty too high - whether sentence manifestly inadequate - whether inadequacy of sentence indicates an error of principle - leave to appeal granted - appeal allowed - sentence of imprisonment increased to a total of 13 years 3 months with a non-parole period of 8 years 6 months.
Everett v The Queen (1994) 181 CLR 295; The Queen v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; Director of Public Prosecutions v Scott [2003] 6 VR 217; (2003) 141 A Crim R 497 , considered.

R v ANGUS
[2004] SASC 317
Court of Criminal Appeal: Doyle CJ, Besanko and White JJ

DOYLE CJ: This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed by a Judge of this Court.
Mr Angus pleaded guilty to one count of manslaughter and one count of assault occasioning actually bodily harm.
He also pleaded guilty to two charges laid in the Magistrates Court. The first was a charge of common assault. The second was a charge of refusing to give his name and address. These two charges arose from Mr Angus’s arrest by Constable Stewart, an off duty police officer who was close by and who apprehended Mr Angus shortly after the incident that gave rise to the other charges.
The Judge imposed a single sentence of imprisonment for nine years six months for the offences of manslaughter and assault occasioning actual bodily harm. But for the plea of guilty the sentence would have been 12 years eight months. The Judge imposed a sentence of six months for the assault on Constable Stewart, to be served cumulatively upon the other sentence. He convicted Mr Angus without penalty on the charge of refusing to give his name and address.
The total head sentence is ten years. The Judge fixed a non-parole period of six years six months.
The Director applies for leave to appeal on the basis that the sentence for the offences of manslaughter and assault occasioning actual bodily harm is manifestly inadequate; on the basis that the reduction for the plea of guilty is excessive in the circumstances, and on the basis that the non-parole period is inadequate.
Facts
Mr Furniss and his family were holidaying at Renmark in January 2003. They were camped near the riverbank. Their boat was tied to the bank.
On 20 January Mr Angus had been drinking with friends. He was affected by alcohol and marijuana. He and Mr Brotchie decided to take a boat for the purpose of “joy riding”. This foolish idea led to tragedy for the Furniss family.
About 9.30 pm Mr Angus and Mr Brotchie got into Mr Furniss’s boat, untied it and pushed off from the bank. They were seen by Mr Furniss. He and his son Ben, aged 15 years, ran down to the river and into the water. The boat was about two metres out from the bank.
It is not necessary to go into all the details. Mr Brotchie had the sense to get out of the boat and return to the bank. Mr Angus stayed in the boat, and resisted the attempt by Mr Furniss and Ben to stop him taking the boat. He hit Ben on the head with an oar. That was the basis for the charge of assault occasioning actual bodily harm. Ben was apparently stunned, fell into the water, and did not see what happened next.
Because Mr Angus disputed his role in the incident, it was necessary for the Judge to hear evidence. The Judge found that Mr Angus hit Mr Furniss with an oar, and also that he struck Mr Furniss with his fists. The punches might have been inflicted when Mr Angus was in the water. Mr Angus caused injuries to Mr Furniss to the head, neck and back. These were obviously significant blows. When Ben surfaced from the water, and was able to assess the situation, he saw his father lying on the surface of the water. He was unable to get to him, and Mr Furniss drowned in these tragic circumstances. There is no doubt that he drowned because he was incapacitated by the blows.
Mr Angus got out of the river and tried to escape. He was quickly apprehended by Constable Stewart. He resisted being arrested, and that led to the charges involving Constable Stewart.
In summary, Mr Angus embarked on an illegal course of conduct. He resisted the attempt to stop him. He landed heavy blows on Mr Furniss and Ben. He fled from the scene showing no concern for the people he had hit.
I have referred to the fact that the Judge heard evidence about the sequence of events. The effect of his findings is that Mr Angus was trying to minimise his guilt by a claim, which the Judge rejected, that he struck less blows than the Judge found he had struck. Mr Angus also claimed that he thought he saw the flash of a knife in Ben’s hand. The Judge found there was no knife, and that Mr Angus’s claim that he thought there was a knife in Ben’s hand was false. In short, right to the end Mr Angus falsely minimised his role.
The plea of guilty to manslaughter was accepted on the basis that Mr Angus did not intend to kill Mr Furniss, or to cause him serious bodily harm.
The plea of guilty came relatively late in the piece. According to the Judge the offer to plead guilty, which was ultimately accepted, was made “at a very late stage”.
Mr Angus was 31 years old when sentenced. The Judge noted that he had had an unhappy childhood, in which he suffered from domestic violence. He had a long history of the abuse of unlawful drugs. He also had a substantial history of offending, involving a number of offences of assault. He has been imprisoned before. The offences breached a bond entered into in Queensland in 2001.
The Judge accepted that Mr Angus was affected by alcohol, but not to the extent that Mr Angus claimed. The Judge referred to expressions of remorse and contrition by Mr Angus. However, he noted that they were not apparent until a late stage. Although the Judge does not refer to this explicitly, the expressions of remorse and contrition are eroded by Mr Angus’s attempts to minimise his conduct.
It is also relevant that in June 2003 Mr Angus wrote to Mrs Furniss and her family, expressing remorse. In that letter he gave a version of events along the lines of the version that the Judge later rejected. The letter caused considerable distress to Mrs Furniss and her family. There is no reason to think that this was intended by Mr Angus, but it reflects a lack of concern about the impact of his conduct on others.
Mr White, counsel for Mr Angus, made the point that the assaults on Mr Furniss and Ben were not planned by Mr Angus, and that everything happened quickly. The death of Mr Furniss was also unintended, and was attributable to the fact that Mr Furniss was in the water when struck.
On the other hand, as I have already said, Mr Angus was behaving illegally. He could have stopped when Mr Brotchie stopped. He assaulted Mr Furniss and Ben when they were in a vulnerable position in the water. There is no excuse at all for what he did. He made no attempt to assist his two victims, and showed no concern for their welfare. The assault on Mr Furniss was not prolonged, but nor was it a single blow. Mr Angus’s record of assaults indicates that he is inclined to violence. His conduct after the incident, when Constable Stewart arrested him, indicates an unpleasant and aggressive aspect of his character.
Mrs Furniss and her family have suffered grievously as a result of the death of Mr Furniss. The victim impact statements indicate that they are a close and loving family. Mrs Furniss has lost her husband, and her children have lost their father. As the Judge said, the agony caused to them was evident from the statements that they made in court.
The adequacy of the sentence
There is no error of principle or of approach evident in the manner in which the Judge arrived at the sentence. If there is a case for leave to appeal and for the appeal to be allowed, it must involve a comparison of the sentence imposed and what is considered to be an appropriate sentence.
I therefore begin by considering the sentence that I would have imposed.
The offence of manslaughter is one that varies a great deal in its seriousness. As Mr Brebner QC, counsel for the Director said, manslaughter can range from little more than a practical joke that went wrong to something little short of murder. Assaults also vary greatly in their seriousness.
The offences in this case were very serious. They were committed in the course of unlawful conduct, and were committed to prevent that conduct being interrupted. They involved the striking of heavy blows in circumstances in which the risk of serious injury was obvious. Anyone who wielded the oar of a boat in the way in which Mr Angus did, must have realised that. There was a risk of death that could not be ignored, bearing in mind that Mr Furniss and Ben were in the water. There is nothing in the circumstances of the offence by way of mitigation.
Nor is there anything much by way of mitigation in Mr Angus’s personal circumstances. His prospects of rehabilitation are doubtful, other than through the impact of severe punishment.
The sentence had to reflect the seriousness of these offences. It is not just that Mr Furniss’s life was taken. Mr Angus used violence during an unlawful enterprise, and the fact that it may have been an impulsive decision does not diminish the seriousness of his conduct greatly. His offences involve conduct of a kind that must be deterred and denounced.
I would have started with a sentence of 15 years for the two main offences. The Judge’s starting point of 12 years 8 months is, in my respectful opinion, low. However, I regard the starting point as within the permissible range for these two offences, when one allows for the substantial element of discretion that is involved in the sentencing process.
I would not have made a reduction of 25 percent for the plea of guilty. Mr Angus’s persistence with his version of the facts, a version that the Judge rejected, meant that the practical benefits that would usually flow from a plea of guilty were substantially reduced. It is also doubtful whether Mr Angus is as contrite as he claims. I would have allowed a reduction of no more than 15 percent. I regard that as generous. That results in a head sentence of 12 years nine months (at the least), plus six months for the other assault. That makes a total head sentence of not less than 13 years three months.
In relation to the head sentence of 13 years three months I would have fixed a non-parole period of eight years six months. The difference between a head sentence of 13 years three months with a non-parole period of eight years six months, and a sentence of 10 years with a non-parole period of six years six months is substantial.
However, it does not follow that leave to appeal should be allowed, or that the appeal should be granted even if leave is allowed. That requires separate consideration.
Leave to appeal - criteria
Decisions of the High Court establish criteria by reference to which this Court must consider an application by the Director for leave to appeal against a sentence on the grounds of inadequacy.
The starting point is that leave to appeal cannot be granted merely to correct an error, including an inadequacy in the sentence imposed.
The High Court has said that leave to appeal should be granted to the Director only when it is necessary to enable the Court to determine a matter of principle, or to correct an error of principle, to establish an appropriate standard for a particular kind of offending, or to correct a manifest inadequacy in a sentence which is so significant as to amount to an “error in point of principle”: Everett v The Queen (1994) 181 CLR 295 at 300 Brennan, Deane, Dawson and Gaudron JJ. I refer without repeating them to the well known words of King CJ on this point in The Queen v Osenkowski (1982) 30 SASR 212 at 213.
In my dissenting judgment in R v Nemer [2003] SASC 375; (2003) 87 SASR 168 I recently summarised the relevant principles at [23]-[24]. I refer to that summary, and in particular to the observation that while it is not appropriate to grant leave to appeal merely with a view to correcting a sentence that is too low, if a sentence is so far below the appropriate sentence “that to allow the sentence to stand would shake public confidence in the administration of justice”, it may be appropriate to grant leave to appeal even though no general point of principle arises.
I note that the Court of Appeal of the Supreme Court of Victoria recently re-affirmed that its approach to appeals by the Director against sentence is the same as in this State: Director of Public Prosecutions v Scott [2003] VSCA 25; (2003) 6 VR 217; (2003) 141 A Crim R 497 at [18].
There is no apparent error of principle in the manner in which the Judge approached the fixing of the sentence. It is not a case that calls for this Court to determine a point of principle that has not previously been determined. Nor is there any reason to think, to use the language of King CJ in Osenkowski, that the sentence reflects an “idiosyncratic” view as to the particular type of crime under consideration.
Nor is this a case that calls for the Court to establish a standard of punishment to be followed in future cases. As I said earlier, the circumstances of manslaughter vary greatly. Manslaughter is not the kind of offence for which the Court can establish a general standard of punishment. Different instances of the offence may well call for a significantly different sentencing approach. Nor does this particular instance of the offence represent an instance of what can be regarded as a distinct category, likely to recur sufficiently often and in sufficiently similar circumstances to warrant an attempt to establish a standard for the particular category of manslaughter.
The issue that calls for consideration, in relation to the grant of leave to appeal is the difference between the sentence that I consider to be appropriate, and the sentence imposed by the Judge. The first aspect of that is whether the difference is so great as to indicate an error by the sentencing Judge, as distinct from doing no more than disclosing a difference of approach that lies within an acceptable range, reflecting the elements of discretion and judgment that are involved in arriving at a sentence: see Nemer at [6]-[9]. In considering that matter it is relevant to bear in mind that I consider that the allowance for the plea of guilty that the Judge made was too great. In that case I consider that an error has been identified.
Even if it is thought that the Judge’s sentence is so low as to indicate error, it does not follow that leave to appeal can be granted. It remains to be considered whether the inadequacy of the sentence indicates an error of principle, or whether it is a sentence which, if allowed to stand, might undermine public confidence in the administration of justice.
Should leave to appeal be granted?
As I have already said, the difference between what I consider to be an appropriate sentence, a head sentence of at least 13 years three months, and the head sentence of 10 years fixed by the Judge, is substantial. It is substantial both in terms of the number of years and as a proportion of the sentence imposed by the Judge.
The two main offences are very serious offences. They are serious in themselves, and are made more serious by being committed in the course of illegal conduct, to ward off Mr Furniss and his son who were legitimately protecting their property. They call for severe punishment. I have not been able to find in the circumstances anything by way of mitigation to justify the leniency extended by the Judge.
After much thought I have concluded that leave to appeal should be granted. The offences would rightly be viewed by the community as calling for severe punishment. The sentence fixed by the Judge cannot be supported on the basis that it merely reflects greater weight given to circumstances of mitigation, or the difference of degree that one must always allow for in sentencing. The sentence is manifestly inadequate, and the Court should so declare. The inadequacy constitutes an error of principle. It is appropriate to grant leave for the purpose of identifying that error.
Having granted leave to appeal, I would allow the appeal. It is not appropriate merely to identify the error. The seriousness of the offences calls for the intervention of this Court to ensure that they are adequately punished.
Conclusion
Accordingly, I would set aside the sentence imposed by the Judge, and substitute a sentence of imprisonment for 12 years nine months for the offences of manslaughter and assault occasioning actual bodily harm, plus a sentence of six months’ imprisonment for the offence of common assault. I agree that in relation to the charge of refusing to give a name and address a conviction without penalty is the appropriate punishment. I would order that the sentence of six months for the assault be served cumulatively upon the other sentence.
In relation to the combined head sentence of 13 years three months I would fix a non-parole period of eight years six months.
I would direct that the first of the sentences and the non-parole period commence to operate from 20 January 2003, the date directed by the Judge.
BESANKO J: In my opinion this appeal should be allowed. I agree with the sentence proposed by the Chief Justice and with his reasons.
WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons. There is nothing which I wish to add.