R v BLAYNEY

[2012] SASCFC 38

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BLAYNEY

[2012] SASCFC 38

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice White)

20 April 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - INTELLECTUALLY HANDICAPPED OFFENDER

Appellant pleaded guilty to offence of aggravated causing serious harm with intent to cause serious harm - sentenced to two years and six months imprisonment - 12 month non-parole period.

Appeal against sentence - whether Judge erred in refusing suspension - whether Judge failed to attach sufficient weight to appellant's age, impaired intellectual capacity and good character.

Held:  Appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 23; Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
Markarian v The Queen (2005) 228 CLR 357; R v Le (2001) 212 LSJS 207; R v McGaffin (2010) 206 A Crim R 188; R v Carroll (1989) 154 LSJS 359; R v Weaver (1973) 6 SASR 265; Muldrock v The Queen (2011) 85 ALJR 1154; R v Clifford [2010] SASCFC 10; R v Wiskich (2000) 207 LSJS 431, considered.

R v BLAYNEY
[2012] SASCFC 38

Court of Criminal Appeal:  Doyle CJ, Anderson and White JJ

1. DOYLE CJ.          I would dismiss the appeal against sentence.  I agree with the reasons given by White J.

2. ANDERSON J.     I agree that the appeal should be dismissed for the reasons given by White J.

3. WHITE J. The appellant pleaded guilty in the District Court to the offence of aggravated causing serious harm with intent to cause serious harm.[1]  The maximum penalty for this offence is imprisonment for 25 years.

   [1]    Criminal Law Consolidation Act 1935 (SA) s 23(1).

4. After making a reduction of six months on account of the appellant’s contrition and remorse as reflected in his plea of guilty, the Judge sentenced him to imprisonment for two years and six months and fixed a non‑parole period of 12 months.  The Judge declined to suspend the sentence.

5. The appellant appeals against the sentence, contending that the Judge erred in refusing suspension.

6. The offence was committed in Whyalla in the early hours of 17 April 2011.  The Judge accepted that it occurred in a context of ongoing animosity between two groups:  one associated with the appellant’s friends and family; and the other with the victim’s friends and family.  The appellant’s family and the victim both lived in Nelligan Street, Whyalla Norrie.

7. Late on Saturday, 16 April or in the early hours of 17 April 2011, an altercation occurred between a group which included at least one of the appellant’s brothers and another group which included the victim.  The altercation, which was entirely verbal, occurred in Nelligan Street outside the front of the house of one of the victim’s friends.  The appellant was not present at that time.

8. The appellant’s brother and friends returned to the appellant’s home in Nelligan Street.  The younger brother told the appellant that he had been abused by the victim.  Thereupon a group decided to go to the victim’s house to remonstrate with him.  The appellant took with him a tyre lever which was about 50 cms long.  Another altercation occurred at the victim’s home in which the appellant, holding the tyre lever in both hands, brought it down forcefully on the victim’s head.  It was not suggested that the victim had done anything to antagonise the appellant or to provoke the assault.  On the account of one witness, the appellant indicated at the time that it was retribution for the victim’s conduct towards his brother.

9. The blow caused the victim serious injuries and, in particular, a depressed skull fracture.  The victim was stunned and lost consciousness.  He was taken to the Whyalla Hospital but then flown to the Royal Adelaide Hospital.  He underwent surgery that same day for the elevation of the depressed fracture.  His wounds apparently healed well over a two month period.  The nature of the blow and the injuries make it likely that the victim will have suffered some continuing disabilities, but the material before the Judge did not indicate whether or not that was so.

10. The appellant was 18 years and four months old at the time of the offence and had just turned 19 at the time of sentencing.  He has had only one previous court appearance, for an offence of serious criminal trespass committed when he was 14 and a half years old.

11. The Judge had a report regarding the appellant from a psychologist, Mr Balfour.  This indicated that the appellant had an intellectual disability of mild severity, with a level of intelligence in the bottom three per cent of the general population for his age.  Despite this disability, the appellant was able to complete Year 10 at school, has completed at least one TAFE course and has been able to maintain continuous employment since leaving school.

12. The Judge accepted that the appellant had gone to the victim’s home with the intention of remonstrating with the victim; that he had been prompted to go out of a misguided sense of loyalty to his younger brother; and that he had misread the situation.   

13. In relation to possible suspension the Judge said:

    I have considered whether it would be appropriate to suspend the sentence of imprisonment that I must impose upon you.

    On the one hand there is your lack of any significant record and your commendable work history, especially given your intellectual disability.

    On the other hand, your offence was a very serious one and could have led to the most severe consequences.

    Young people must be deterred from taking weapons into conflicts.

    There must be strong deterrence against this type of situation, especially where, as here, the importation of the weapon into the conflict was entirely your own doing and entirely unnecessary.

    I am mindful that the victim is entitled to feel that the law has, to some degree, marked its displeasure at your conduct towards him.

    In the end, I have concluded that the seriousness of the offence and injuries requires an immediate custodial sentence.

    The Judge went on to say that he took into account the appellant’s high prospects of rehabilitation in fixing a lower than normal non‑parole period.

14. On the appeal, counsel for the appellant submitted that in considering suspension, the Judge had failed to attach sufficient weight to the appellant’s age, impaired intellectual capacity, and good character.

15. This submission faced a difficulty at the outset.  Counsel for the appellant at the sentencing (who was not counsel on the appeal) informed the Judge that the appellant accepted that the seriousness of the blow which he had inflicted meant that “an immediate custodial sentence is the likely outcome”.  Counsel for the Director had also submitted that an unsuspended sentence of imprisonment was appropriate. 

16. However, despite the acknowledgement of the appellant’s then counsel, the Judge did address in some detail the issue of possible suspension.  It can also be seen that the Judge referred specifically to the matters upon which counsel for the appellant now relies, namely, the appellant’s relative youth, intellectual disability and good record.  It cannot be said that the Judge overlooked these matters.

17. A decision concerning suspension of a sentence under s 38 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) involves a discretionary judgment. The circumstances in which this Court will interfere with the exercise of such a discretionary judgment are limited, as the reasons of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen[2] indicate:

    As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".[3]

    (Citation omitted)

    [2] [2005] HCA 25; (2005) 228 CLR 357.

    [3] Ibid at [25]; 370-1.

18. The matters to which counsel for the appellant referred are important.  This Court has frequently held that the youthfulness of an offender is a mitigatory matter.[4]  The courts recognise that the young and immature may be prone to ill‑considered or rash decisions; may not appreciate fully the nature, seriousness and consequences of the criminality involved in their conduct; have the potential to be redeemed and rehabilitated; and that imprisonment in an adult prison may be more likely to impair, rather than improve, an offender’s prospects of a successful rehabilitation.[5]  Thus in R v Carroll,[6] King CJ spoke of courts being “inclined to mercy in the case of young people facing prison for the first time”.  Similarly, in R v Weaver,[7] Bray CJ, Mitchell and Sangster JJ said:

    Whenever a young person is before the Court, particularly upon his first appearance as an adult, it seems to us that his rehabilitation should be a prominent consideration in fixing the sentence.[8]

    Each of those considerations is pertinent in the present case.

    [4]    R v Le [2001] SASC 28 at [16]; (2001) 212 LSJS 207 at 208.

    [5]    R v McGaffin [2010] SASCFC 22 at [69]; (2010) 206 A Crim R 188 at 210.

    [6] (1989) 154 LSJS 359 at 360.

    [7] (1973) 6 SASR 265.

    [8] Ibid at 267.

19. The decision of the High Court in Muldrock v The Queen[9] also confirms that intellectual impairment may be a factor relevant to sentencing.  Having referred to the reduced scope for general deterrence and retribution in the sentencing of such offenders, the High Court continued:

    The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[10]

    (Citations omitted)

    [9] [2011] HCA 39; (2011) 85 ALJR 1154.

    [10] Ibid at [54]; 1167.

20. The authorities in this Court were reviewed by Duggan J in R v Clifford.[11]  It is not necessary to repeat that review.  Duggan J referred with approval to the following passage in the reasons of Martin J in R v Wiskich:[12]

    The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case.  An assessment of the severity of the disorder is required.  A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. … [A]s a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected.  The gravity of the criminal conduct is also an important consideration.  It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence.  In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence.  In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.[13]

    Thus, regard must always be had to the circumstances of the particular case.  The mere fact that an offender has some intellectual impairment will not necessarily mean that it is mitigatory.

    [11] [2010] SASCFC 10.

    [12] [2000] SASC 64; (2000) 207 LSJS 431.

    [13] Ibid at [62]; 457-8.

21. Counsel submitted that the appellant’s intellectual impairment was relevant in a number of ways.  These were that his poor abstract problem solving skills and poor forward planning skills, coupled with his manner of concrete thinking, provided a causal link between his disability and the offending itself; that his condition was amenable to treatment if he is provided with the services identified by Mr Balfour; and that his low level of intelligence made it likely that he would have a more difficult time in custody than would a person of normal intelligence.

22. Finally, counsel emphasised the appellant’s good character, pointing out that his only previous court appearance occurred when he was 14 and a half years old.  In addition, counsel emphasised that the appellant had lived a stable lifestyle since leaving school, having had regular employment and living in stable domestic circumstances.

23. I agree that these are all pertinent matters but, as noted, they were matters which the Judge did address.  It cannot be said that they were overlooked.

24. In my opinion, the evidence in the present case did not really indicate a link between the appellant’s limited intellectual capacity, on the one hand, and the offending, on the other.  Mr Balfour appeared to put the position at its highest when he said:

    Mr Blayney’s offending behaviour is the actions of an intellectually disabled man with a reduced capacity for abstract social problem solving who became angry.

    However, the explanation which the appellant himself proffered during the course of sentencing submissions for his behaviour seems more cogent.  This was the context of ongoing animosity between the two families in Nelligan Street and his wish to provide support for his younger brother.  The appellant knew what he was doing, and knew that it was wrong.  The circumstances of the offending indicated that deterrence, both personal and general, was important.

25. Counsel for the appellant submitted that an indication that the Judge had failed to give full consideration to the appellant’s youth, intellectual impairment and good character could be inferred from the fact that he had not elaborated in his sentencing remarks on the ways in which those matters could be relevant to the sentencing decision, and from the fact that he had not referred to any of the relevant principles.  However, it needs to be kept in mind that the Judge sentenced the appellant immediately following the completion of the sentencing submissions and that his remarks were of an ex tempore kind.  For this reason they may well have been briefer than prepared sentencing remarks.  They were also made in the context in which, as previously noted, the then counsel for the appellant had accepted that an immediate sentence of imprisonment was appropriate.  Further, I do not consider that it is always essential that sentencing judges, on each occasion that they refer to a factor relevant to the sentencing, spell out the various ways in which that factor has, or has not, as the case may be, been taken into account in reaching the sentencing decision.

    Conclusion

26. I recognise the force of many of the submissions made on the appellant’s behalf. Considered by themselves they may have amounted to “good reason” for the purposes of s 38 of the CLSA justifying suspension. However, those matters cannot be considered by themselves. It cannot be overlooked that the appellant was being sentenced for a very serious offence, committed in circumstances which may have had very grave consequences. The appellant’s conduct was not of a spur of the moment kind, nor an ill-advised reaction to provocative conduct. The appellant made a choice to leave his own home and to go to the victim’s home for the purposes of effecting retribution. He chose to arm himself with a formidable weapon with which, using both hands, he inflicted a stunning blow to the victim. The fact that the offence occurred in a context of animosity between two groups within the one street did of course provide an explanation for the appellant’s conduct, but it also indicated that, despite the appellant’s low intelligence, considerations of both personal and general deterrence were important in the sentencing decision.

27. As noted earlier, the Judge did take account of the appellant’s good prospects for a successful rehabilitation in fixing a relatively low non‑parole period.

28. For these reasons, I consider that the appellant has not established an error of the kind which would warrant inference by this Court with the Judge’s refusal to suspend the sentence.

29. Accordingly, I would dismiss the appeal.