R v Bahrami

Case [2020] SASCFC 111

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BAHRAMI

[2020] SASCFC 111

Judgment of The Court of Criminal Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Livesey and the Honourable Justice Bleby)

27 November 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY

Application for permission to appeal against sentence by the Director of Public Prosecutions.

The respondent pleaded guilty to four counts of aggravated indecent assault and one count of false imprisonment in the Magistrates Court not more than four weeks after his first court appearance.  The respondent was sentenced to four years, nine months and 19 days’ imprisonment, with a non-parole period of three years.

On the afternoon of 3 April 2019, the 10-year-old victim of the respondent’s offending, J, rode her bike to the Blair Athol Public Reserve.  J’s mother was to join J there after collecting her other daughter from home.  The respondent was already in the reserve with his daughter and niece who were both toddlers.  When J arrived, the respondent was pushing the toddlers on a swing.  J climbed onto an adjacent swing.  The respondent stood in front of the swing to give J a push as well, but took the opportunity to touch J between the legs.

Under the ruse of seeking directions, the respondent deceived J into accompanying him to the toilet block in the park.  He took the toddlers with him, but once in the block he separated J from them by placing her into a cubicle.  He blocked J’s exit and placed her on the toilet, facing away from him.  He then indecently assaulted and falsely imprisoned J.  All of the offending occurred within a period of eight minutes.

The Director appeals on the grounds that the sentence is manifestly inadequate and that the Judge erred in the exercise of his discretion conferred by s 40(3)(a) of the Sentencing Act 2017 (SA) in reducing the sentence his Honour would otherwise have imposed by 40 percent for the respondent’s early guilty plea.

Held per Kourakis CJ (Livesey and Bleby JJ agreeing) granting permission to appeal and allowing the appeal:

1.  The sentence is so disproportionately low having regard to the circumstances of the offending that it must be corrected in order to maintain public confidence in the administration of the criminal law.

2. The Judge erred in law in his application of s 40(3)(a) of the Sentencing Act 2017 (SA). In reaching the conclusion that he was precluded from reducing the sentence he would otherwise have imposed by anything less than 40 percent, the Judge misunderstood the…

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R v Bahrami [2020] SASCFC 111
Case
[2020] SASCFC 111
Decision Date

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Livesey and Bleby JJ, considered an appeal against a sentence imposed in the District Court. The appeal concerned the appropriate reduction to be applied to a sentence due to an early guilty plea, in circumstances where the offending was particularly abhorrent and caused significant distress.

The central legal issue before the Full Court was whether the sentencing judge had erred in law by misinterpreting section 40(3)(a) of the Sentencing Act 2017 (SA) and relevant High Court authorities. Specifically, the court had to determine if the judge was bound to apply the maximum permissible reduction for the guilty plea, or if other sentencing considerations, such as community protection and the nature of the offending, could justify a lesser reduction.

The Full Court held that the sentencing judge had erred in law by misunderstanding the relevant authorities and the application of section 40 of the Sentencing Act. The court reasoned that while section 40 provides a yardstick and a maximum reduction for a guilty plea, it does not mandate the maximum reduction in all circumstances. The court emphasised that where community protection is paramount, or where the guilty plea is undermined by prior conduct such as false denials and the implication of others, a substantially smaller reduction than that provided by the applicable band may be justified. Allowing a reduction so great as to compromise public purposes, particularly community protection, risks undermining public confidence in the administration of justice.

Permission to appeal was granted, and the appeal was allowed. The sentence imposed in the District Court was set aside. Kourakis CJ, with Livesey and Bleby JJ agreeing, determined that a reduction of just under 31 percent for the guilty plea was appropriate, resulting in a sentence of six years and 11 months imprisonment with a non-parole period of five years. Livesey and Bleby JJ, in their separate reasons, considered a 30 percent reduction appropriate, leading to a sentence of seven years imprisonment with a non-parole period of five years. Both judgments agreed that but for the guilty plea, a sentence of ten years would have been imposed.

Orders

Orders of the court

Held per Kourakis CJ (Livesey and Bleby JJ agreeing) granting permission to appeal and allowing the appeal:

1. The sentence is so disproportionately low having regard to the circumstances of the offending that it must be corrected in order to maintain public confidence in the administration of the criminal law.

2. The Judge erred in law in his application of s 40(3)(a) of the Sentencing Act 2017 (SA). In reaching the conclusion that he was precluded from reducing the sentence he would otherwise have imposed by anything less than 40 percent, the Judge misunderstood the relevant authorities of this Court.

3. Permission to appeal must be granted to correct the erroneous view that allowing the maximum reduction in this grossly undeserving case was required by s 40 of the Sentencing Act 2017 (SA) and the authorities of this Court.

4. The sentence imposed in the District Court, other than the intervention order, is set aside.

Held per Livesey J (Bleby J agreeing):

5. But for the respondent’s guilty plea, a sentence of ten years would have been imposed. A reduction of 30 percent for the respondent’s guilty plea is appropriate. The respondent is sentenced to seven years’ imprisonment with a non-parole period of five years, to commence on 18 April 2019.

Held per Kourakis CJ:

6. But for the respondent’s guilty plea, a sentence of ten years would have been imposed. A reduction of just under 31 percent for the respondent’s guilty plea is allowed. The respondent should be sentenced to six years and 11 months’ imprisonment with a non-parole period of five years, to commence on 18 April 2019.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is unnecessary to elaborate on the exercise of the discretion within an applicable band. However, once it is accepted that the bands provide a yardstick as well as a maximum, it is necessary to be clear about when a reduction, by something less than the applicable band, will be appropriate. A principled identification of the class of case which necessarily calls for a substantially smaller reduction than one which falls within the band is necessary. In Shannon, Wells J explained that a guilty plea may have very little weight in sentencing offenders who are ‘defiant of all authority’ or are ‘confirmed misanthrope[s] with a dangerous proclivity towards violence’.[22] The class so identified is one in which community protection is the paramount sentencing consideration. Just as the need for community protection could deny any material reduction for a guilty plea at common law, it may justify a substantial departure from the band otherwise applicable as prescribed by s 40 and, therefore, a reduction which falls within a later band otherwise applicable to a plea in a later stage of the proceedings. The important point to make is that only if the reduction is so great that it compromises the public purposes which sentencing must serve, and community protection in particular, will it affect public confidence in the administration of the criminal law.[22] The Queen v Shannon (1979) 21 SASR 442 at 455 (Wells J).Conclusion The Judge erred in law. The Judge was not bound by s 40 of the Sentencing Act, nor by any decision of this Court, to allow the maximum reduction for the respondent’s early guilty plea. The preponderance of relevant considerations called for a reduction towards the lower end of the relevant bracket. First, the offence was abhorrent, terrified the victim and caused enduring distress to her family. It shocked and alarmed the community and heightened anxiety about the welfare of its children. A sentence with strong elements of punishment, personal deterrence and community protection was called for. The maximum allowable reduction of 40 percent meant that in the order of four years would be subtracted from the notional starting sentence. A reduction of that magnitude undermined the purposes of general and specific deterrence and community protection which are important in offences of this kind. As a result, allowing the maximum reduction risked undermining public confidence in the administration of justice. Secondly, the early guilty plea was preceded by strong denials of the offending and by the invention of completely false stories. The respondent stood by whilst his brother was falsely accused and arrested. His courtroom expressions of remorse came late. Thirdly, the evidence against the respondent was overwhelming. Fourthly, there was no consideration of any substance supporting the maximum reduction. Allowing the respondent the maximum reduction in those circumstances necessarily undermined public confidence in the administration of the criminal law. Permission to appeal must be granted to correct the erroneous view that allowing the maximum reduction in this grossly undeserving case was required by s 40 of the Sentencing Act and the authorities of this Court.

Ratio Decidendi

Legal Principle Established

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