R v Barnett

Case [2009] SASC 332

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BARNETT

[2009] SASC 332

Judgment of The Court of Criminal Appeal

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

30 October 2009

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - PARTICULAR CASES

Appeal against sentence - defendant and appellant charged with aggravated offence of causing death by dangerous driving - matter of aggravation blood alcohol reading - defendant pleaded guilty and was sentenced to term of imprisonment of four years and six months reduced to three years and four months on account of the plea of guilty - non-parole period of two years and eight months fixed - defendant disqualified from holding or obtaining a driver's licence for 12 years - whether judge erred in fixing mandatory minimum non-parole period of four fifths of head sentence - whether special reasons existed to fix a non-parole period lower than the mandatory minimum in circumstances.

Held:  (Gray J): appeal dismissed - factual matters for finding that special reasons exist to fix non-parole period shorter than prescribed minimum established - Court's unfettered discretion enlivened - Court entitled to fix non-parole period as it thinks fit - non-parole period of four fifths of head sentence appropriate in circumstances - notwithstanding error in Judge's approach to sentencing, no miscarriage of justice occasioned.

(Vanstone J): appeal dismissed - although pre-condition for the fixing of non-parole period less than prescribed minimum established, no room for reduction of non-parole period in circumstances - sentence imposed moderate in circumstances. 

(Kourakis J): appeal dismissed - relatively slight weight can be accorded to the prescribed matters in circumstances of case - no special reasons established - those prescribed matters not sufficient reason to depart from general rule established by the Criminal law (Sentencing) Act.

Criminal Law Consolidation Act 1935 (SA) 19A; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 32 and s 32A; Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) s 11, referred to.
Palling v Corfield (1970) 123 CLR 52; R v Ironside (2009) 104 SASR 54; Bugmy v The Queen (1990) 169 CLR 525; R v P (S) (1978) 5 RFL (2d) 118; Shrimpton v Commonwealth (1945) 69 CLR 613; P1 Contingency Landfill Site Cost Application (1991) 25 OMBR 385; Protean (Holdings) Ltd v Environment Protection Authority [1977] VR 51; Willett v Willett (1976) 9 ALR 470; In Re McCarthy [1975] 1 WLR 807; Giris Pty Ltd v Federal Commissioner of Taxation (1969) 119 CLR 365; Hoffmann v Waters (2007) 98 SASR 500; Roberts v Hopwood [1925] AC 578; Performing Rights Organization of Canada Ltd v Canadian Broadcasting Corp (1986) 7 CPR (3d) 433; Ross v Ross (1984) 39 RFL (2d) 51; R v Shrestha (1991) 173 CLR 48; R v Perre (1986) 41 SASR 105;

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AGLC
R v Barnett [2009] SASC 332
Case
[2009] SASC 332
Decision Date

CaseChat Overview and Summary

In the case of R v Barnett, the defendant, who had pleaded guilty to causing death by dangerous driving, was sentenced to a term of imprisonment of four years and six months, reduced to three years and four months due to the plea of guilty. The non-parole period was fixed at two years and eight months, and the defendant was disqualified from holding or obtaining a driver's licence for 12 years. The defendant appealed against the sentence, arguing that the judge had erred in fixing the non-parole period at four-fifths of the head sentence and that there were special reasons to fix a non-parole period lower than the mandatory minimum. The appeal was dismissed by Gray J, Vanstone J, and Kourakis J, who found that there were no special reasons to justify a reduction in the non-parole period.

The legal issues the court had to decide were whether the judge had erred in his approach to determining if there were special reasons to fix a non-parole period shorter than the mandatory minimum and whether there were any special reasons to reduce the non-parole period in the circumstances. The court found that the judge had not erred in his approach, and that there were no special reasons to reduce the non-parole period. The court considered the prescribed matters specified in the Criminal Law (Sentencing) Act 1988, but found that they were not sufficient reason to depart from the general rule established by the Act. The court also found that the sentence imposed was moderate in the circumstances.

In conclusion, the appeal was dismissed by the court, and the sentence imposed was upheld. The court found that the defendant's blood alcohol concentration at the time of the offence, which was between 0.16 percent and 0.19 percent, was a significant factor in the commission of the offence, and that there were no special reasons to reduce the non-parole period. The court found that the non-parole period of four-fifths of the head sentence was appropriate in the circumstances, and that the sentence imposed was moderate. The final orders of the court were that the appeal be dismissed, and that the sentence imposed be upheld.

Orders

Orders of the court

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Background

Background to the litigation

The applicant asserts that the judge erred in his approach to the determination of whether or not there were “special reasons … for fixing a non-parole period … shorter than” four-fifths of the sentence. The applicant also argues that the judge mistook the attitude of the prosecution to the question of whether special reasons existed and that this mistake could have affected his decision. Permission to appeal on these grounds was refused by a judge of this court at an earlier hearing.Background A court sentencing for a “serious offence against the person” may only fix a non-parole period shorter than the prescribed mandatory minimum non-parole period if it is satisfied that there are “special reasons” for doing so: s 32A(2)(b) Criminal Law (Sentencing) Act 1988. Section 32A(3) specifies three matters to which the court is to have regard in deciding whether special reasons exist. In essence, these are where the victim’s conduct or condition constitutes a mitigating factor, or where there is a plea of guilty by the offender, or co-operation by the offender in the investigation or prosecution of the offence. I shall refer to these as the “prescribed” matters or a similar term. It is clear that there may be no finding of special reasons in terms of s 32A(2)(b) without the presence of a prescribed matter. But the presence of such a matter, though necessary, may not be sufficient. The applicant’s first argument is that once such a matter is identified, the question of whether there are special reasons to reduce the non-parole period below the mandatory minimum is to be determined only by an evaluation of the mitigating effect of the prescribed matter. To put the proposition differently, it is said that in considering a reduction, the wording of the section dictates that no countervailing factors, outside the prescribed matter, may be taken into account. It is convenient now to set out the relevant provisions.32—Duty of court to fix or extend non-parole periods(1) Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—(a)if the person is not subject to an existing non-parole period—fix a non-parole period; or…(5) The above provisions are subject to the following qualifications:…(ba)if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four‑fifths the length of the sentence;…(10) For the purposes of this section—…(d) a serious offence against the person means—(i)a major indictable offence (other than an offence of murder) that results in the death of the victim or the victim suffering total incapacity; or(ii)a conspiracy to commit an offence referred to in subparagraph (i); or(iii)aiding, abetting, counselling or procuring the commission of an offence referred to in subparagraph (i); and…32A—Mandatory minimum non-parole periods and proportionality(1) If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies.(2) In fixing a non-parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may—(a)if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or(b)if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.(3) In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:(a)the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;(b)if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;(c)the degree to which the offender has co‑operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.Analysis

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not consider that any such misapprehension had any impact on the sentencing process. For one thing, the attitude of prosecuting counsel, however accommodating, in no way binds the court: R v Perre (1986) 41 SASR 105; R v Nemer (2003) 87 SASR 168. But also, accepting the judge’s assessment of the seriousness of the offence, the only live issue arising under s 32A was whether the non-parole period should have been increased from the mandatory minimum. While the applicant could claim in his favour at least one of the pre-conditions for the exercise described by s 32A(2)(b), there was no room for a reduction of the non-parole period.Conclusion In my view, the sentence imposed was, in all respects, moderate. Because the application raises a matter of importance relating to the operation of important new legislation, I would grant permission to appeal, but I would dismiss the appeal.KOURAKIS J The applicant pleaded guilty to aggravated causing death by dangerous driving.[21] The offence was an aggravated offence because the applicant’s blood alcohol concentration exceeded 0.08 percent; at the time of the offence it was between 0.16 percent and 0.19 percent. He was sentenced to imprisonment for four years and six months. A non-parole period of two years and eight months was fixed. The non-parole period so fixed was the mandatory minimum non-parole period of four-fifths of the head sentence prescribed by s 32(5)(ba) of the Criminal Law (Sentencing) Act 1988 (the Act). The offence attracted the mandatory minimum non-parole period because the offence of aggravated cause death by dangerous driving is a major indictable offence.[22][21] Criminal Law Consolidation Act 1935 s 19A(1).[22] Pursuant to s 32(10)(d)(i) of the Criminal Law (Sentencing) Act 1988, s 32(5)(ba) of that Act applies to major indictable offences that result in the death or total incapacity of the victim. The applicant seeks permission to appeal against the non-parole period. There is no permission sought to appeal against the head sentence. The applicant complains that the Judge erred in failing to find that there were special reasons pursuant to s 32A(3) of the Act to fix a non-parole period lower than the mandatory minimum. In particular, the applicant contends that the existence of special reasons is to be determined exclusively by reference to the three matters prescribed by that sub-section, which are: mitigation arising out of the victim’s conduct, the offender’s guilty plea and his co-operation with police (the prescribed matters). For the reasons that follow, that submission should be rejected. Special reasons exist when, either alone or in combination, the prescribed matters justify a reduction of the mandatory minimum term when weighed against all the circumstances of the offence. On the facts of this case the prescribed matters fail to do so and for that reason I would grant permission to appeal, but I would dismiss the appeal.The Offence The offence occurred just after midnight on 5 January 2007. On 4 January 2007, the applicant, who was at the time aged 40, travelled by taxi with Nathan Siddall to a hotel in Strathalbyn. Nathan Siddall was aged 27. His younger brother, Michael Siddall, who was aged 25, joined them later. He had driven to the hotel in a 2004 Holden Commodore sedan which he had bought only about four months earlier. They all drank a large amount of alcohol. Michael’s blood alcohol concentration was later determined to be 0.253 percent and Nathan’s 0.234 percent.

Ratio Decidendi

Legal Principle Established

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