R v Barnes (No 2)

[2014] SASCFC 123

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BARNES (No 2)

[2014] SASCFC 123

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Parker)

13 November 2014

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

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - DANGEROUS DRIVING - GENERALLY

Application for permission to appeal against sentence.  The defendant and appellant pleaded guilty to two counts of theft and one count of driving dangerously to escape police pursuit.  The two counts of theft related to the defendant’s purchase of a motor vehicle believing that it was likely to have been stolen and his theft of a caravan.  After being called upon by police to stop driving the vehicle, the defendant continued driving for a period of about 30 minutes.  In the course of the subsequent police pursuit, the defendant drove on the wrong side of the road, reached speeds of up to 140 kilometres per hour and collided with a police vehicle.  The offending was in breach of the terms of a good behaviour bond and the Judge revoked a suspended sentence of six months’ imprisonment attaching to that bond.  The Judge imposed an additional three years’ imprisonment in respect of the subject offending and ordered that this be served cumulatively upon an existing term of imprisonment imposed in the Court of Criminal Appeal in relation to prior unrelated offending.  Accordingly, the defendant faced a total term of imprisonment of six years.  The Judge fixed a non-parole period of four years. 

Whether the sentence imposed by the Judge was manifestly excessive.  Whether the sentence imposed by the Judge failed to have regard to the defendant’s existing sentence imposed in the Court of Criminal Appeal.

Held per Gray J (Vanstone and Parker JJ concurring)(refusing permission to appeal):

1.  There is no conflict between the approach of the sentencing Judge in this case and the earlier decision of the Court of Criminal Appeal.

2.  The sentence imposed was well within the sentencing discretion of the Judge.

3.  The sentence imposed had proper regard to the personal antecedents of the defendant and his prospects for rehabilitation.

R v BARNES (No 2)
[2014] SASCFC 123

Court of Criminal Appeal         Gray, Vanstone and Parker JJ

GRAY J.

1. This is an application for permission to appeal against sentence.

   Introduction

2. The defendant and applicant, Kym Derwyn Barnes, pleaded guilty in the District Court to two counts of theft and one count of driving dangerously to escape police pursuit.  The defendant admitted breaching the terms of a suspended sentence bond by committing these offences.  A suspended sentence of six months attached to that bond.  The pleas of guilty were entered on 10 June 2014, the date on which the matter was listed for trial. 

3. The Judge revoked the suspension of the defendant’s sentence of imprisonment of six months and ordered that this sentence was to commence at the conclusion of a sentence of two years and six months imposed by the Court of Criminal Appeal in respect of prior offending.  In relation to the first offence of theft, the Judge imposed a sentence of imprisonment of one year and two months, to be served cumulatively on the previously suspended sentence of six months.  In respect of the second offence of theft, the Judge imposed a sentence of imprisonment of one year and six months, also to be served cumulatively on the suspended sentence.  As a consequence, there was concurrency as to the period of one year and two months in respect of the two offences of theft.  In relation to the offence of driving dangerously to escape police pursuit, the Judge imposed a sentence of imprisonment of one year and six months, to be served cumulatively on the second offence of theft.  As a consequence the defendant faced a total term of imprisonment of six years commencing on 14 May 2013.  The Judge reviewed the existing non-parole period of 15 months and extended the non-parole period to a term of four years. 

4. The defendant was unrepresented on the hearing of the application for permission.  When the matter was called on at the hearing, the defendant was not ready to proceed.  The hearing was adjourned and the defendant was granted leave to provide written submissions in support of the application.  Written submissions have now been filed.  The Court has also received written submissions from the Director of Public Prosecutions.

5. The defendant submitted that the sentence imposed was manifestly excessive.  It was complained that the Judge failed to consider the imposition of concurrent sentences and, as a consequence, failed to adequately consider the principle of totality.  It was also argued that the Judge failed to have proper regard to the sentence that had been imposed in the Court of Criminal Appeal in respect of other related offending of the defendant. 

   Relevant Antecedents

6. The defendant has a lengthy history of offending.  To understand the sentence imposed and the complaints on appeal, it is necessary to refer to particular aspects of that history. 

7. Between July 2010 and January 2011, the defendant committed a number of offences of dishonesty.  On 22 December 2011, a six month imprisonment term was imposed.  That sentence was suspended on the defendant’s entry into a two year good behaviour bond. 

8. In July 2011, the defendant committed two counts of aggravated assault against his domestic partner.  On 24 October 2013, the defendant was sentenced in the District Court to a term of imprisonment for each offence leading to a total term of imprisonment of three years.  A non-parole period of 18 months was fixed and the sentence was backdated to commence on 14 May 2013.  On 18 July 2014, the Court of Criminal Appeal allowed the defendant’s appeal for the limited purpose of ordering partial concurrency between the two periods of imprisonment.  As a consequence, the total term of imprisonment was reduced from three years to a period of two years and six months.  A new non-parole period was fixed of one year and three months. 

   The Circumstances of the Present Offending

9. In early 2013, the defendant purchased a stolen motor vehicle believing that it was likely to have been stolen.  He paid $3,500.00 for a vehicle valued at about $18,000.00.  On the night of 11 and 12 May 2013, the defendant stole a caravan of a value of about $39,000.00.  On 14 May 2013, the defendant was observed by police to be driving a stolen car towing the caravan.  The police were driving a marked police vehicle and they called on the defendant to stop.  The defendant continued driving along the Onkaparinga Valley Road at speeds of up to 80 kilometres per hour in a 60 kilometre per hour zone.  He turned off the Onkaparinga Valley Road into a no-through road.  He came to a stop and the police vehicle stopped behind the caravan.  The defendant then reversed, ramming the police car.  The defendant then executed a three-point turn and drove away.  In the process he again collided with the police vehicle.  Eventually the defendant unhitched the caravan and left it beside the road.  He continued driving.  By this time, a number of police officers were mobile and searching for the defendant.  For about the next 30 minutes, the defendant drove at high speed throughout the hills area in an attempt to escape police pursuit.  In the process, he drove at speeds of up to 140 kilometres per hour.  His partner was a passenger in the vehicle.  His manner of driving was both reckless and dangerous.  When overtaking on bends and crossing double white lines, he narrowly avoided collisions with oncoming vehicles.  Several other drivers had to pull off the road for their safety.  The police pursuit was abandoned for safety considerations.  The police then deployed road spikes.  The defendant drove through the spikes on the wrong side of the road.  He then continued to drive with spiked tyres at high speed for several kilometres before being apprehended. 

   The Sentencing Judge

10. The Judge summarised the defendant’s offending in the following terms:

    Your crimes of theft are plainly serious and your crime of driving to escape police pursuit was protracted, reckless in the extreme, and highly dangerous and, indeed, you can count yourself fortunate that nobody was killed or seriously injured. Otherwise you would have been facing significantly more serious charges.

11. The Judge, at the conclusion of his remarks, set out the sentence that he intended to impose as follows:

    The maximum sentence for theft is 10 years and for driving dangerously to escape police pursuit it is three years and disqualification from holding or obtaining a driver’s licence for at least two years, and the courts must do what they can to deter those who might be minded to do what you did.

    It has not been submitted, and nor could it have been, that your failures to comply with the terms of your suspended sentence bond were trivial or that there are proper grounds to excuse them.

    The suspension of your sentence of six months is revoked and that sentence will be served cumulatively on the sentence you are currently serving. For your first crime of theft, you will be sentenced to imprisonment for one year and two months. But for your plea, it would have been one year and six months. That sentence will be served cumulatively on the previously suspended sentence I have just carried into effect.  For your second crime of theft, you will be sentenced to imprisonment for one year and six months. But for your plea, it would have been one year and eight months. That sentence will also be served cumulatively on your previously suspended sentence.  For your offence of driving dangerously to escape police pursuit, you will be sentenced to imprisonment for one year and six months. But for your plea, it would have been one year and eight months. That sentence will be served cumulatively on the sentence for your second crime of theft.  You will also be disqualified from holding or obtaining a driver’s licence for a period of three years.

    That makes a total of six years commencing on 14 May 2013. I review your existing non-parole period and I extend it to four years commencing the same day.

    The Application for Permission

12. The defendant’s contention that the Judge failed to address concurrency and totality is misconceived.  It is evident from the Judge’s reasons that he specifically addressed concurrency and ordered concurrency in respect of the two offences of theft.  That concurrency was significant as it extended to a period of one year and two months.  This complaint is without substance. 

13. The defendant’s contention that the Judge failed to have proper regard to the sentence imposed by the Court of Criminal Appeal and the reasons of that Court is also misconceived.  Those proceedings concerned offences of a wholly different character committed in July of 2011.  The Court of Criminal Appeal allowed the appeal for the limited purpose of directing that there be a partial concurrency in respect of the separate sentences imposed in the District Court.  It would appear that the defendant has misconceived the issues dealt with by the Court of Criminal Appeal, wrongly understanding that the reduction was made having regard to his personal circumstances.  Those matters were discussed when rejecting the defendant’s submissions on the issue of suspension.  There is no conflict between the approach of the Judge in this case and the decision of the Court of Criminal Appeal.  I do not consider that there is any substance to this complaint. 

14. It is convenient to now address the final complaint that the sentence imposed, and, in particular, the non-parole period, is manifestly excessive.  No error of sentencing principle occurred.  No immaterial facts were had regard to and no material facts were overlooked.  The effect of the defendant’s submission to this Court was that he had excellent prospects for rehabilitation.  It was said that he had a good employment record as a qualified mechanic, that he had strong family support and an ongoing stable relationship with his present partner, that he had overcome his drug abuse, and that he intended to become a law-abiding citizen.

15. In respect of the antecedents of the defendant, the Judge made the following remarks:

    You are 32 years of age and thus old enough to know better. Alcohol and illicit substances have been your problem over the years and your criminal record is a reflection of this.

    You nonetheless have a good employment history. You are a qualified mechanic and you have work to go to when you are ultimately released. You have insight into your issues. You have undertaken some counselling. You know that you must overcome the drink and the drugs in order to go straight, and you want to get your life in order and be a good father to your son. You are in a stable relationship. Your partner stands by you and both she and your father will be there to support you when you are ultimately released.

    Your criminal record is extensive. You have committed offences of theft, false pretences, deception and assault. You have numerous convictions for vehicle and traffic offences, including excess speed, due care and speed dangerous.

    It is plain from your record and from the punishments that you have received, and from the leniency that has been extended to you from time to time, that you have not yet learned to respect the law.

16. The defendant had extensive criminal antecedents in addition to those mentioned above.  His dishonesty offending commenced when he was 19 years of age when he was released without conviction for the offence of larceny.  Shortly prior to and following his sentence for that offence, he committed three further offences of larceny and other dishonesty offences.  On this occasion, he was convicted and a suspended term of imprisonment of 15 months was imposed.  As discussed above, he committed further dishonesty offending leading to a suspended term of six months’ imprisonment.  For more than a decade prior to the present offending, the defendant had numerous convictions for offences under the Road Traffic Act 1961 (SA) and the Motor Vehicles Act 1959 (SA). In 2005, he was sentenced to imprisonment for 105 days in respect of driving offences. In 2010 and 2011, he committed drug offending relating to his personal drug abuse problems. In addition to the foregoing, the defendant has a history of breaching bonds including a suspended sentence bond.

17. These antecedents demonstrate that the defendant has been afforded leniency from time to time, but, notwithstanding, has continued with ongoing criminal conduct.  In respect of the present offending, the defendant could not expect the leniency that might be extended to a person with no relevant prior offending.

18. In my view, the sentence of the Judge had proper regard to the personal antecedents of the defendant and his prospect for rehabilitation.  No basis has been shown to support the contention that the sentence imposed was manifestly excessive.  I consider that the sentence imposed was well within the sentencing discretion of the Judge.

    Conclusion

19. I would refuse permission to appeal against sentence.

20. VANSTONE J:     I agree that permission to appeal should be refused for the reasons written by Gray J.

21. PARKER J:          I agree with Gray J and would refuse permission to appeal against sentence.