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

DOYLE CJ. I would dismiss the appeal against sentence. I agree with the reasons given by White J.
ANDERSON J. I agree that the appeal should be dismissed for the reasons given by White J.
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).
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.
The appellant appeals against the sentence, contending that the Judge erred in refusing suspension.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BLAYNEY

Details

AGLC: R v Blayney [2012] SASCFC 38
Case: [2012] SASCFC 38
Decision Date: 20 April 2012

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, who had pleaded guilty to aggravated causing serious harm with intent to cause serious harm. The appellant was sentenced to two years and six months imprisonment with a 12-month non-parole period. The appeal was brought before the Full Court of the Supreme Court of South Australia, comprising Doyle CJ, Anderson and White JJ.

The central legal issues before the court were whether the sentencing judge erred in refusing to suspend the sentence and whether insufficient weight had been given to the appellant's age, impaired intellectual capacity, and good character. The appellant argued that the judge's failure to elaborate on how these factors were considered in his sentencing remarks suggested a lack of full consideration.

The court acknowledged the appellant's submissions regarding his youth, intellectual impairment, and good character, noting that these factors, considered in isolation, might have constituted "good reason" for suspending the sentence under section 38 of the Criminal Law (Sentencing) Act. However, the court emphasised that these factors could not be considered in isolation, given the gravity of the offence. The appellant's conduct was described as a deliberate act of retribution, involving arming himself with a weapon and inflicting a significant blow. While the context of animosity between groups provided an explanation, it also underscored the importance of personal and general deterrence, even for an offender with low intelligence. The court found that the sentencing judge had taken the appellant's good rehabilitation prospects into account by fixing a relatively low non-parole period. Consequently, the court concluded that the appellant had not established an error warranting interference with the judge's refusal to suspend the sentence.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ (dissent) ANDERSON J (dissent) WHITE J

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 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. 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. 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. Accordingly, I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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