R v BERGMAN

[2007] SASC 31

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BERGMAN

[2007] SASC 31

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Layton)

6 February 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

Appeal against sentence - appellant pleaded guilty on the morning of trial to aggravated serious criminal trespass in a place of residence; causing grievous bodily harm with intent to cause grievous bodily harm; and common assault - sentenced to eight years imprisonment with a non-parole period of five years - whether sentence manifestly excessive - Held: sentence within the appropriate range for such offending - sentence not manifestly excessive - appeal dismissed.

Criminal Law (Sentencing) Act 1988 s 10(2) and s 18A; Criminal Law Consolidation Act 1935 s 170(2), referred to.
R v Paterson (2001) 214 LSJS 353; R v Humby [2004] SASC 358; R v Siozios [2004] SASC 299, considered.

R v BERGMAN
[2007] SASC 31

Court of Criminal Appeal:  Doyle CJ, Debelle and Layton JJ

1. DOYLE CJ:          I would dismiss the appeal against sentence.  I agree with the reasons given by Layton J for so deciding.  I agree also with the reasons given by Debelle J.

2. DEBELLE J:        The appellant’s offending was particularly serious.  It first involved an aggravated serious criminal trespass to a residence.  The appellant and four others broke open the front door of a residence which they knew was occupied by two others.  There were also two children in the house at the time.  The appellant and his co-offenders then entered the house and violently assaulted the two adults.  The appellant also committed the offences of causing grievous bodily harm with intent to cause grievous bodily harm and a common assault.  The appellant and another assailant were each armed with an aluminium baseball bat which they used to attack a man about his torso and arms.  It caused him to suffer a broken left forearm, broken hands, severe bruising and cuts.  The offending was planned.  The appellant and the others had decided to take the law into their own hands. 

3. I agree with the sentencing Judge’s description of the offending as “an extremely serious group of offences, very nasty and very vicious”.  I agree also with his observation that the first two offences are towards the upper end of seriousness for offences of this type.  It was offending which called for a severe sentence.  In that respect, it is relevant to note that the penalty for each of the first two offences is a period of life imprisonment.

4. The appellant has a poor record.  That fact, and the serious nature of the offending required that the sentence act as a personal deterrent to the appellant.  The prevalence of this kind of offending required that it also be a deterrent to others minded to offend in a similar way.

5. The sentencing Judge had regard to all relevant factors.  It has not been demonstrated that he erred in any respect.  He was guarded as to the appellant’s prospects of rehabilitation and, given the appellant’s poor record, his caution was justified.  The sentence of eight years’ imprisonment with a non-parole period of five years was plainly within the proper bounds of the sentencing discretion for this offending.  In no sense is it manifestly excessive.

6. I would dismiss the appeal.

   LAYTON J:

   Introduction

7. This is an appeal against sentence.  The appellant pleaded guilty on the morning of his trial to aggravated serious criminal trespass in a place of residence; causing grievous bodily harm with intent to cause grievous bodily harm; and common assault.  The offences were committed on 4 October 2004.  The appellant was sentenced on 11 September 2006 to eight years imprisonment with a non-parole period of five years.  Both the sentence of imprisonment and the non-parole period were backdated to 18 July 2005.

8. The appellant appeals on the ground that the sentence imposed is manifestly excessive.  A second ground, relating to the Judge’s failure to indicate a starting point for the sentence, was not pursued.

   Circumstances of the offending

9. Prior to the alleged offending, at about midday on Monday 4 October, 2004, a confrontation took place between Matthew Stone and his partner Sara Griffin (“the victims”), and Jessica Sinclair and her partner Ricky Coath.  The confrontation took place near shops close to where the victims lived and predominantly involved Sara Griffin and Jessica Sinclair exchanging verbal insults. 

10. At this time, it appears that there was some ill-feeling between some members of the Stone family and some members of the Sinclair family, as a result of a relationship between Matthew Stone’s brother and Jessica Sinclair which had ended in acrimonious circumstances a couple of years earlier.  Also at this time, the appellant was in a relationship with Jade Sinclair, Jessica Sinclair’s sister.  Later that day, the appellant said he received a telephone call from Jessica about the confrontation between herself and the victims, and she told him that she had been threatened and was scared about what might happen to her. She also told the appellant that he had been threatened and that the victims were going to “sort him out” too. The specific threat to the appellant was that a number of people were going to come around and “get him”.  At the time of this telephone call, the appellant was at home with four others.

11. The appellant and four others (“the group”) then drove to a park close to where the victims and their two children lived. The group left the car in the park, and walked to the victims’ house.  The appellant and another assailant in the group were each armed with aluminium baseball bats.  Either the appellant or the other assailant broke open the front door, and both chased Matthew Stone to the laundry.  The appellant then struck Matthew Stone a number of times to the arms and torso with the baseball bat.  The other assailant then also attacked Matthew Stone with his baseball bat. The appellant and the other assailant then fled the house, causing some property damage on their way out.  Matthew Stone sustained a broken left forearm, a broken hand, and severe cuts and bruising.

12. Sara Griffin was also assaulted by other members of the group, including being hit across the head, neck and back with a baseball bat. Ms Griffin’s injuries consisted mainly of bruising and welts to an arm and her back.

13. The appellant pleaded guilty to aggravated serious criminal trespass in a place of residence and causing grievous bodily harm with intent to cause grievous bodily harm.  He also pleaded guilty to a common assault of Sara Griffin.  Although it was accepted that the appellant did not physically assault Sara Griffin, he accepted legal responsibility for this charge on the basis of the doctrine of joint criminal enterprise. 

    The Sentence

14. The sentencing Judge imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act (1988), and sentenced the appellant to eight years imprisonment with a non-parole period of five years.  His Honour backdated the sentence to 18 July 2005, being the date when the appellant was re-arrested.[1]  The Judge also took into account time spent in custody prior to that date, and reduced both the head sentence and non-parole period by three months.  The sentencing Judge noted that at the time of sentencing that the non-parole period had a little less than four years to run.

    [1] The appellant was arrested on 4 0ctober 2004. On 10 March 2005, the appellant was sentenced to seven months imprisonment for other offences in the Christies Beach Magistrates Court.  The appellant was re-arrested on 18 July 2005.

15. In arriving at a head sentence of eight years, the sentencing Judge noted that this was an “extremely serious group of offences, very nasty and very vicious”.  His Honour considered that the aggravated serious criminal trespass and causing grievous bodily harm with intent to cause grievous bodily harm, were “towards the upper end of seriousness for offences of this type”.

16. The sentencing Judge also referred to the need for both personal and general deterrence, and in particular the need to protect occupiers of homes from violent intruders such as the appellant.

    Is the sentence manifestly excessive?

17. On appeal, counsel for the appellant did not identify any specific error in the sentencing Judge’s reasons, but relied on the latent error which was said to be manifested by the excessive length of the sentence imposed.  Counsel accepted that the appellant had committed very serious offences, but submitted that the appellant’s limited antecedent history and numerous character references required a shorter sentence than that imposed. 

18. Counsel, whilst acknowledging the difficulty in comparing cases, referred to the case of R v Paterson,[2] in which a sentence of three years and eight months imprisonment, with a non-parole period of two years was imposed following a plea of guilty to aggravated serious criminal trespass.  In that case, the offender and another had trespassed onto the victim’s premises, and had attacked the victim by kicking and punching him.  The sentencing Judge took his starting point as a term of imprisonment of five years, and deducted one year for the guilty plea and four months for time spent in custody and on home detention. 

    [2] R v Paterson [2001] SASC 204.

19. The facts of the present case are distinguishable from Paterson in a number of respects, including the use of weapons, the number of victims, and the seriousness of the injuries caused in this case.  Counsel for the appellant accepted that the two cases are quite different, but submitted that despite these differences, the comparison of Paterson against the present case illuminated the excessiveness of the sentence under appeal.

20. In sentencing, the Court is to have regard to what Parliament has expressed as a primary policy of the criminal law, namely the protection of the security of lawful occupants of the home from intruders.[3]  A criminal trespass into a home is a very grave invasion of a place that is viewed as a personal sanctuary. The seriousness of the crime is reflected by the maximum penalty for aggravated serious criminal trespass in a place of residence, which is life imprisonment. 

    [3] Section 10(2) Criminal Law (Sentencing) Act 1988 (SA).

21. This is a case of aggravated serious criminal trespass. Each of the aggravating features set out in s 170(2) of the Criminal Law Consolidation Act 1935 (SA) were present in this case - the appellant was in company, was armed, and entered the home with the knowledge that people were inside. This offending was particularly serious. Counsel for the appellant did not challenge the assessment by the sentencing Judge that it was “towards the upper end of seriousness” for offences of this kind.

22. Armed with weapons, the appellant and his companions forced their way into the victims’ home, and viciously attacked them.  The appellant being the primary actor, acted in response to a perceived threat, giving no thought to the possible presence of the victims’ young children, who were in the home at the time of the attack.  The appellant fortified by his companions, entered the home not only with the knowledge that certain people were inside, but with the intention of harming them.  Their actions were premeditated and deliberate. The victim impact statements before the Court attest to the lasting physical and psychological effect that this terrifying incident has had upon the victims and their children.

23. Furthermore, in this case the appellant committed two violent offences in addition to the aggravated serious criminal trespass, after entering the premises.  The penalty imposed must reflect an adequate punishment for all offences,[4] keeping in mind that the maximum penalty for causing grievous bodily harm is also life imprisonment.

    [4] R v Humby [2004] SASC 358; R v Siozios [2004] SASC 299.

24. In considering whether a sentence is manifestly excessive, it is important to keep in mind that there is a range of sentences which may be appropriate in any given case.  While the sentence imposed in the present case may be at the upper end of the scale for the offences committed, I do not consider that it is outside that appropriate range.

25. I consider that the seriousness of the offending, and the need for general and personal deterrence in relation to violent home invasions, is appropriately reflected in the sentence imposed.  I consider that the sentencing Judge gave appropriate weight to the appellant’s antecedent history, which was lengthy albeit relatively minor, and related predominantly to driving offences.  These offences demonstrate a lack of preparedness to appropriately comply with the law, and a disdain towards complying with bonds.  On the basis of such antecedent history, the sentencing Judge was justified in expressing his hesitation regarding the appellant’s prospects for rehabilitation, despite the numerous references tendered attesting to the appellant’s good character and sound work ethic.  This is particularly so, having regard to the psychological report tendered during submissions, which concluded that Mr Bergman’s prospects for rehabilitation were poor, unless he undertook intensive counselling and received “strong guidance”.

26. For all of the above reasons, I consider that the sentence imposed by the sentencing Judge was not manifestly excessive.  I would dismiss the appeal.