R v B, TB; R v J-M, Am - [2013] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, TB; R v J-M, AM
[2013] SASCFC 40
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Blue)
24 May 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES
Two youths murdered an 87-year-old woman who had disturbed them while they were breaking into her home - at the first arraignment B pleaded guilty and J-M pleaded not guilty - B provided a statement to police and acceded to a request to give evidence at the trial of J-M – later J-M changed his plea to guilty – the appellants were sentenced to life imprisonment and a non-parole period of 20 years was fixed – they appeal on the ground that the non-parole period imposed was manifestly excessive – the appellant B also appeals on the ground that he did not receive appropriate credit for his cooperation with authorities – whether the non-parole period was manifestly excessive – whether B was entitled to a discount for cooperation.
Held: There is no error in the approach of the sentencing Judge – both appellants are young men – the victim was an elderly defenceless woman who posed no threat to them – although the crime was not premeditated in the sense that it was planned, there was opportunity for the appellants to withdraw – having regard to the nature and magnitude of the offence, a non-parole period of this order was to be expected.
It is the usual practice of courts to make a reduction in sentence for an offender who has cooperated with authorities – the primary policies behind extending leniency are twofold, to encourage offenders to cooperate with authorities and acknowledge the contrition and remorse of the offender – however an offer to assist the prosecution and to give evidence must be an offer to give truthful evidence – what is to be encouraged is full and frank disclosure – B’s offer to give evidence did not manifest genuine contrition – the giving by B of statements to police was not a factor in J-M’s decision to change his plea to guilty – the Judge’s sentencing remarks about credit for the offer to give evidence were addressed in simple terms to B to convey to him why he will have to serve a very long custodial sentence – the Judge did not fall into error.
Criminal Law Consolidation Act 1935 (SA) s 11, s 32(5)(ab), s 32A; Young Offenders Act 1993 (SA) s 29(4), s 3, s 29(1)(a), referred to.
R v A, D (2011) 109 SASR 197; R v QTV (2008) 87 SASR 378; R v Golding (1980) 23…

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.

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Details

Case: [2013] SASCFC 40
Decision Date: 24 May 2013

CaseChat Overview and Summary

The appellants, two youths, appealed against their sentences of life imprisonment with a non-parole period of 20 years, imposed after they murdered an 87-year-old woman during a home invasion. The primary ground of appeal for both was that the non-parole period was manifestly excessive. The appellant B also contended that he did not receive appropriate credit for his cooperation with the authorities.

The court was required to determine whether the non-parole period of 20 years was manifestly excessive given the circumstances of the offence and the youth of the offenders. Additionally, the court had to consider whether the appellant B was entitled to a further reduction in his sentence for his cooperation with the police, and if so, whether the sentencing judge had erred in not providing adequate credit.

The court found no error in the sentencing judge's approach. It noted that while both appellants were young, the victim was elderly and defenceless, and despite the crime not being premeditated in the sense of being planned, there had been opportunities for the appellants to withdraw. The court considered a non-parole period of 20 years to be expected given the nature and magnitude of the offence. Regarding B's cooperation, the court acknowledged the usual practice of granting sentence reductions for such assistance, which serves to encourage cooperation and acknowledge contrition. However, it found that B's offer to give evidence did not manifest genuine contrition, as his statements to the police contained serious lies aimed at minimising his own role. Furthermore, the court determined that B's statements were not a factor in the co-appellant J-M's decision to plead guilty. The sentencing judge's remarks were interpreted as explaining to B why, despite the general principle of giving credit for cooperation, he would not receive further credit beyond that already accounted for in the 20-year non-parole period, which was the same as J-M's.

Consequently, the court concluded that the sentencing judge had taken all relevant matters into account for each defendant and had not erred in making no distinction between them. Both appeals were dismissed.

Orders

Orders of the court

Held: There is no error in the approach of the sentencing Judge – both appellants are young men – the victim was an elderly defenceless woman who posed no threat to them – although the crime was not premeditated in the sense that it was planned, there was opportunity for the appellants to withdraw – having regard to the nature and magnitude of the offence, a non-parole period of this order was to be expected.

It is the usual practice of courts to make a reduction in sentence for an offender who has cooperated with authorities – the primary policies behind extending leniency are twofold, to encourage offenders to cooperate with authorities and acknowledge the contrition and remorse of the offender – however an offer to assist the prosecution and to give evidence must be an offer to give truthful evidence – what is to be encouraged is full and frank disclosure – B’s offer to give evidence did not manifest genuine contrition – the giving by B of statements to police was not a factor in J-M’s decision to change his plea to guilty – the Judge’s sentencing remarks about credit for the offer to give evidence were addressed in simple terms to B to convey to him why he will have to serve a very long custodial sentence – the Judge did not fall into error.

Background

Background to the litigation

The defendants appeal on the ground that the non-parole period is manifestly excessive. B also appeals on the ground that the sentencing Judge did not give appropriate credit for his cooperation with authorities.Background On 26 January 2011, in the early hours of the morning, the defendants killed Ms Anne Redman in the backyard of her home at Seacliff where she lived alone. She was an 87-year-old widow who was previously unknown to them. Her throat was cut seven times. Ms Redman had disturbed the defendants, who were breaking into her home. Earlier that evening, the defendants had broken into another house which was unoccupied. They were unable to locate any items of value. At the time of breaking into Ms Redman’s home, the defendants claim that they believed it to be unoccupied. The defendants planned the break-in at Ms Redman’s home, bringing with them balaclavas and gloves. As they had done during previous break-ins, the defendants switched off the power at the meter box upon their arrival. The screen to a toilet window was cut and a number of louvers to that window were removed. As J-M attempted to enter through the window, a louver was broken and he stepped on the flushing mechanism of the toilet. J-M entered and hid inside the house. B remained outside. Ms Redman awoke. She went outside with a torch to inspect the meter box. It was at that stage Ms Redman observed B. When B realised that he had been observed, he knocked Ms Redman to the ground. It was only then that he realised that she was an elderly woman. J-M, having realised that they had been disturbed and that B was struggling with the occupant of the house, ran through the house and back to the car. When B had not returned, J-M took a knife from a bag in the car and returned searching for B. J-M soon realised that the person who had been struggling with B was an elderly lady and he realised that B was holding her down. In submissions to the Judge, each defendant gave a different account about what occurred immediately prior to the infliction of the wounds which resulted in Ms Redman’s death. B asserted that J-M threatened him by saying something to the effect that, if he did not use the knife, J-M would use it on B and Ms Redman. B asserted that J-M then gave him the knife and that, in a state of panic, he stabbed and cut Ms Redman whilst J-M held her down. J-M asserted that he did not threaten B; that it was B who urged him to use the knife; and that he told B that he was not in a good position to do so and handed the knife to B who inflicted the fatal wounds. The different accounts given by the defendants were not believable. The Judge concluded that neither B nor J-M had been completely truthful about what had occurred. Each had minimised his culpability for the murder. The Judge concluded that she was unable to reach any firm conclusion as to exactly what B and J-M each did immediately preceding Ms Redman’s death. The Judge considered it was unnecessary to resolve the issue, as there was no dispute that both B and J-M were together when the fatal wounds were inflicted, and that both were equally responsible for Ms Redman’s death.

Evidence

Evidence Before The Court

We conclude that B had gone through a very deliberate and active process of providing the police with a statement which contained a number of serious lies about the respective participation of himself and J-M. In our view, B’s offer to give evidence was made out of self-interest alone and did not manifest genuine contrition. The Judge was not obliged to treat B’s offer as evidence of his genuine contrition. Was there utilitarian value in B’s offer to give evidence? We observe that as early as 8 August 2012 the Director of Public Prosecutions already had a strong case against J-M as was summarised in the document “Summary Of Key Aspects Of The Prosecution Brief” filed on that date:… It appears that both were wearing balaclavas – the two balaclavas located in the backpack in J-M’s bedroom on 21 September 2011 were stained with the deceased’s blood.…In about September 2011, J-M told MJ that B had killed the deceased and that the knife belonging to B was kept in his car between the front seats.On 9 September 2011, J-M spoke further to MJ. The account of that conversation is detailed at page 8 of her statement. Among other things, MJ says that J-M told her that he had obtained the knife from the car after the deceased had come outside. He had attempted to stab the deceased but then gave the knife to B, who used it on the deceased and killed her, while J-M was holding her down.On 29 September 2011 J-M’s telephone conversation with an interstate friend LD is intercepted. He indicates that the hunting knife is long gone.Between 6 October 2011 and 12 October 2011 J-M’s conversations with MM and CM (his parents) are recorded via a listening device installed in their home. These conversations are set out in appendix LD 1 a to the declaration of Detective Senior Constable Campbell Hill at “Call Sequence” Numbers 11, 12, 39, 56, 249 and 250. Amongst the matters discussed, J-M admits to being present at the scene but indicates B killed the deceased. J-M indicates that he retrieved a knife from the vehicle and brought it back to the backyard during the incident. Further, on 27 October 2011 a witness, Ms JB, had provided a signed statement to police deposing that J-M and she had had a long conversation (during which he made important admissions) a few days after the police searched his house and car and, more importantly, had a further longer conversation on the day before he was arrested when he described to her what had happened in detail and in largely the same terms as presently before the Court. All of this material had been promptly disclosed to J-M. It would therefore have been apparent to both J-M and his advisers that the Director of Public Prosecutions had a very strong case against J-M without the evidence of B. On the appeal, counsel for J-M confirmed that:·J-M was always going to plead guilty and that the entry of the plea of guilty was in no way brought about by the prosecution supplying the statement of B to the J-M’s advisers;·the time period between committal and the plea of guilty by J-M had been needed to give proper legal advice to J-M as to his precise position as an accessory at the fact bearing in mind that J-M had not himself inflicted any harm on the victim; ·the defence position was not affected by B’s statement to police, particularly bearing in mind that B never asserted that J-M actually performed the stabbing;·in fact, some false assertions in B’s statement to the police complicated the task of J-M’s legal advisers and tended to delay the entry of the guilty plea.

Decision

Reasons for decision

The Judge’s sentencing remarks about credit for the offer to give evidence were addressed in simple terms to B, then an 18 year old youth, to convey to him why it is that he will have to serve a very long custodial sentence. In our view, the Judge was simply saying to B that, as a matter of general principle, a person is usually to be given credit for cooperating with police by offering to give evidence against a co-accused but, in his case, he had told serious untruths about J-M in an effort to minimise his own role and, taking into account all of the facts and circumstances in the case, both for and against him, she had decided that he should obtain no further credit than such as to result in a non-parole period of the same length as that of J-M.Conclusion The Judge took into account all matters relevant to each defendant and ultimately concluded that no distinction should be made between them. We conclude that the Judge did not fall into error in reaching her conclusions. Accordingly, we would dismiss both appeals.

Ratio Decidendi

Legal Principle Established

We are not persuaded that the sentencing Judge erred in fixing a non-parole period of 25 years and then reducing that to a period of 20 years. The Judge had sufficient regard to the factors in s 3 of the Act. Having regard to the nature and magnitude of the offence, a non-parole period of this order was to be expected.Cooperation It is the usual practice of courts to make a reduction in the sentence for an offender who has cooperated with authorities.[3] The primary policies behind extending such leniency are twofold: to encourage offenders to cooperate with authorities and acknowledge the contrition and remorse of the offender.[3] R v Nguyen (1989) 50 SASR 361, 362. In R v Golding,[4]Wells J stated that courts will be disposed to show leniency to encourage opposition to any idea that there should be honour among thieves; other considerations apart, sentences and published reasons for them should be adjusted so as to further that opposition. [4] R v Golding (1980) 24 SASR 161, 172. In R v Salameh, Smart J discussed the purpose of giving a discount to offenders who cooperate with the authorities. He stated: [5]The basic reason for this discount is to encourage the disclosure by criminals of the names and criminal activities of other criminals. As good people prefer to have nothing to do with crime and criminals, often the only source of information available is other criminals. In society's ongoing and never-ending war against crime it is of critical importance that criminals be caught, convicted and punished. This cannot happen without information. It is the high probability of being caught which is important in keeping down the rate of crime. The principle of deterrence becomes less potent if criminals are not caught and it becomes widely known that there is a good chance of not being caught. The encouragement to offenders to speak by giving discounts for useful assistance is also designed to encourage offenders to have less confidence in each other. It is part of society's weaponry to discourage the commission of crime.[5] R v Salameh (1991) 55 A Crim R 384, [4]. In that case, Kirby P also stated the considerations which warrant allowing such discounts in sentence:[6]However, it is important, once again, to state the considerations which warrant allowing such discounts in sentence. First, there is the assistance which is given to the prosecuting authorities to bring home to those responsible their criminal offences. Often this will be impossible without the assistance of co-offenders or other persons engaged in criminal conduct especially in, but not limited to, cases involving drug dealing. Secondly, such assistance may lead to the vindication of the criminal process by the clearing up of crime in a public way, viz by trials in courts of law. Thirdly, the co-operation may evidence contrition on the part of the offender and signal his or her commitment to break the criminal pattern and to start life afresh accepting the law and its institutions. Fourthly, there are the burdens and dangers which are faced by the offenders and their families once the offender has assisted authorities. The offender, as in this case, must face and accept the added deprivation of protective custody. The family is subject to possible retaliation. The fear that retaliation might happen is itself an added burden carried by the offender when serving his or her custodial sentence. Fifthly, once the prisoner is released, he or she is at risk, against which the Crown can then not normally offer daily protection.[6] R v Salameh (1991) 55 A Crim R 384, [7].