(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)
21 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
Appellant pleaded guilty to the offences of aggravated causing serious harm by dangerous driving, assault causing harm, aggravated assault and two further counts of assault – appellant sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) to one term of imprisonment for all offending of 10 years with a non-parole period of eight years – sentencing Judge disqualified the appellant from holding or obtaining a driver’s licence for ten years – whether the sentencing Judge erred by applying notional sentences to each of the offences but not giving consideration to the question of the concurrency in whole or in part of the notional sentences – whether the principle of totality required a lesser sentence – whether the sentence was manifestly excessive.
Whether the failure of the sentencing Judge to address the question of partial concurrency for sentences for successive assaults on a number of persons over a short period of time raises the need for re-sentencing. Whether, and to what extent, such sentences should be notionally formulated and partial concurrency be ordered.
Held: (Gray and Sulan JJ): Appeal dismissed - the fact that the Judge chose to impose individual notional sentences in respect of each offence provided a degree of transparency but the sentence must be looked at as an overall sentence – whether notional sentences imposed should have been concurrent rather than cumulative is not a question for the Court as the question to be asked is whether the overall sentence is manifestly excessive – sentencing Judge gave express consideration to the principle of totality and was correct in finding that the sentence for the offending was not crushing - sentence imposed by the Judge was well within his sentencing discretion.
Held: (Peek J, in dissent): The appeal should be allowed - the sentencing Judge had erred in failing to consider partial concurrency for the assault sentences - separate notional sentences for the assaults should be partially concurrent as between themselves but cumulative upon the sentence for the driving offence.
Section 18A Criminal Law (Sentencing) Act 1988 (SA) does not replace the previously existing law and practice relating to sentencing for multiple offences - the role of concurrency and partial concurrency of sentence considered - the doctrine of totality considered - desirability of transparency in sentencing.
Upon re-sentencing: appropriate notional sentences for each of the assaults quantified and then reduced by way of partial concurrency as between themselves to a…
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 Bagnato
Sign in free to access the full text
Details
AGLC
R v Bagnato [2011] SASCFC 161
Case
[2011] SASCFC 161
Decision Date
CaseChat Overview and Summary
The case of *R v Bagnato* concerned an appeal against a sentence imposed by a judge in the South Australian criminal jurisdiction. The appellant had pleaded guilty to several offences, including aggravated causing serious harm by dangerous driving, assault causing harm, aggravated assault, and two further counts of assault. The sentencing judge had imposed a single term of imprisonment of 10 years with a non-parole period of eight years, pursuant to section 18A of the *Criminal Law (Sentencing) Act 1988* (SA), and disqualified the appellant from holding a driver's licence for ten years.
The appellant raised three grounds of appeal. Firstly, it was argued that the sentencing judge erred by applying notional sentences to each offence but failing to give sufficient consideration to the concurrency, in whole or in part, of these notional sentences. Secondly, the appellant contended that the principle of totality required a lesser sentence given the cumulative effect of the offences. Finally, it was argued that the overall sentence imposed was manifestly excessive.
The Court of Appeal considered the doctrine of concurrency of sentences, noting that offences committed in the course of a single transaction should generally be served concurrently. The court identified that the assault offences committed by the appellant occurred within minutes of each other, at the same location, and followed a common precursor, the dangerous driving incident. These factors strongly indicated that at least partial concurrency of the sentences for these offences should have been afforded. The court also addressed the "one-transaction rule," which posits that sentences for offences arising from a single transaction should be concurrent. The appellant's argument was that the sentencing judge, despite properly identifying notional sentences, had not adequately considered the interconnectedness of the offences when determining the final sentence.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
On appeal the defendant complained that in arriving at the final sentence of ten years imprisonment, the Judge had applied notional sentences to each of the offences and then utilised the powers contained in section 18A of the Sentencing Act, without giving sufficient consideration to the question of the concurrency in whole or in part of the notional sentences. Further, it was contended that the Judge failed to consider whether the overall sentence was so great that the principle of totality required a lesser sentence. Finally, it was contended that the sentence imposed was manifestly excessive.The Facts At about 6.00 pm on Monday 8 February 2010, the defendant was driving north on Morphett Road, Glengowrie in a 60 kilometre per hour zone at a speed of between 105 and 117 kilometres per hour. The defendant drove into the rear of a stationary motor vehicle that was proposing to turn right. The driver of the other vehicle was complying with all relevant road traffic rules. The impact was severe and the driver of the other vehicle sustained a fractured neck. It was probable that alcohol had some part to play as the defendant admitted having consumed several beers earlier that day. However, the extent of the influence of alcohol was unknown as the defendant refused breath and blood testing. Following the collision, airbags in the defendant’s vehicle were activated and he was able to leave his vehicle virtually uninjured. The driver of the other vehicle was trapped and the engine caught fire while he remained trapped in the vehicle. A motorcyclist stopped and, with others, went to extinguish the fire. The defendant confronted the motorcyclist, informed him that he was a member of the Rebels, a motorcycle gang, and kicked the motorcyclist in the thigh. The motorcyclist did nothing to provoke the assault. The defendant was apparently of the view that the driver of the other car was at fault. While the other driver was trapped in his vehicle semiconscious, the defendant abused him and then punched him in the face. The defendant abused others at the scene. A person who lived nearby was attempting to take photographs of what had occurred. The defendant grabbed him and hit him and then kicked him while he was on the ground. The victim sustained a broken collarbone. He was unconscious for a short time. The fire service and an ambulance arrived at the scene. The defendant obstructed the ambulance officers. The defendant at this time threatened to kill the other driver. The ambulance officers were eventually able to remove the other driver from his vehicle. While the ambulance officers were moving the other driver by stretcher, the defendant again assaulted the other driver by striking him in the face. The defendant resisted police officers in their attempt to effect his arrest until eventually he was subdued by capsicum spray. The defendant claimed loss of memory. However, the evidence disclosed that he had not sustained a head injury. There is no other reason arising from the incident that could have caused any loss of memory. The psychologist report tendered at the sentencing hearing was of limited use as it was established that the defendant had lied to the psychologist on a number of material matters.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
PEEK J
Having regard to the facts and the grounds of appeal, the primary questions for consideration would appear to be whether there was sentencing error in that at least partial concurrency of sentence was required and/or whether the sentence was manifestly excessive. This initial analysis of the case is strengthened by the fact that there was no complaint in the grounds of appeal, or in the course of argument, about the fact that the sentencing Judge had indicated notional sentences for each of the offences before proceeding to impose a sentence pursuant to s 18A Criminal Law (Sentencing) Act 1988 (hereafter Sentencing Act) or that he had thereby erred in law. Indeed, quite to the contrary. The appellant’s position was that the learned Judge had properly done so and that the resulting transparency enabled the appellant to submit that his Honour had paid no, or insufficient, attention to the matter of partial concurrency of the notional sentences in circumstances where the facts revealed closely connected offences, all committed at the same location and within a total period of a few minutes.Structure of this judgment However, the majority judgment ranges somewhat broader. It particularly refers to the vexed question of the requirement or desirability of specification of “notional sentences” for multiple offences when utilising s 18A Sentencing Act and accordingly I will also address those matters. The structure of this judgment is as follows:Part AThe doctrine of concurrency of sentences Part BThe High Court Decisions in Pearce v The Queen and Johnson v The QueenPart CThe obligation to address concurrency of sentencePart DThe approach of the majority in the present casePart E The “two-stage”/“instinctive synthesis” debatePart F The disposition of this appealPART A: THE DOCTRINE OF CONCURRENCY OF SENTENCES There are a number of strong indicators that the assault offences following the accident should be afforded at least partial concurrency[40] as between themselves. In summary, the assault offences:·are of the same type;·are committed within minutes of each other;·are committed in the same place;·arise following a common precursor, the accident; and·are all quite pointless and self destructive.[40] Here and elsewhere “concurrency” includes partial concurrency. Before considering the facts in detail, I will examine the nature and present status of the doctrine of concurrency of sentencing. A core concept of concurrency of sentence – the “one transaction rule” Thomas, Principles of Sentencing[41] referred to the core concept of concurrency of sentencing as the “one-transaction rule” and stated:The one-transaction rule can be stated simply: where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive. [41] DA Thomas, Principles of Sentencing, (Heinemann Educational Books Ltd, 2nd ed, 1979) 53. I will not embark on an examination of the long history of the procedural and substantive origins and development of the doctrine of accumulation and concurrency of sentence for either felonies or misdemeanours or combinations of both. For present purposes, I will simply take an arbitrary time period of about the last fifty years or so and note that the existence of such a rule in Australia has been relatively well settled during that period.