R v Angus

Case [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

  1. 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.

  2. Mr Angus pleaded guilty to one count of manslaughter and one count of assault occasioning actually bodily harm.

  3. 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.

  4. 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.

  5. The total head sentence is ten years.  The Judge fixed a non-parole period of six years six months.

  6. 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…

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Details
AGLC
R v Angus [2004] SASC 317
Case
[2004] SASC 317
Decision Date

CaseChat Overview and Summary

In the case of R v Angus, the Director of Public Prosecutions applied for leave to appeal against the sentence imposed by the trial judge on Angus, who had pleaded guilty to one count of manslaughter and one count of assault occasioning actual bodily harm. The trial judge had imposed a total sentence of 10 years with a non-parole period of 6 years 6 months. The Director argued that the sentence was manifestly inadequate, the discount for the plea of guilty was excessive, and the non-parole period was inadequate.

The legal issues before the court were whether the head sentence imposed was adequate, whether the discount for the plea of guilty was too high, and whether the inadequacy of the sentence indicated an error of principle. The court considered the nature and circumstances of the offences, the degree of culpability of the offender, and the need for deterrence and denunciation. The court also considered the principles of sentencing and the need for consistency in sentencing.

The court found that the sentence imposed by the trial judge was manifestly inadequate. The court noted that the offences were serious and involved violence against vulnerable victims. The court also found that the discount for the plea of guilty was excessive, as the offender had shown a lack of remorse and had minimised his role in the offences. The court held that the inadequacy of the sentence indicated an error of principle, as it did not reflect the seriousness of the offences or the need for deterrence and denunciation. The court granted leave to appeal and allowed the appeal, increasing the sentence to a total of 13 years 3 months with a non-parole period of 8 years 6 months.

The final orders of the court were that the sentence imposed by the trial judge be set aside, and a new sentence of imprisonment for 12 years 9 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, be substituted. The court also ordered that the sentence of six months for the assault be served cumulatively upon the other sentence, and that the non-parole period of eight years six months commence to operate from 20 January 2003. The court directed that a conviction without penalty be recorded in relation to the charge of refusing to give a name and address.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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