R v Brady - [2011] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRADY
[2011] SASCFC 79
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Anderson and The Honourable Justice David)
4 August 2011
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
Appeal against sentence – appellant convicted of offences of assault and aggravated causing harm with intent to cause harm – offences breached parole with respect to previous life sentence for murder – declaration pursuant to s 20B Sentencing Act that appellant a serious repeat offender – sentenced to 6 years imprisonment for new offences – Sentencing Judge applied R v Armstrong and declined to fix a non-parole period – appellant required to apply to the Supreme Court for a new non-parole period.
Whether Judge erred in declaring appellant a serious repeat offender – whether declaration futile in view of reactivation of previous life sentence – applicability of s 20B(4)(b) to total sentence to be served following breach of parole – whether declaration in District Court fettered discretion of Supreme Court in fixing new non-parole period – whether sentence manifestly excessive – whether recent amendments to Sentencing Act no longer required District Court to refer fixing of non-parole period to Supreme Court.
Held: Sentencing Judge correctly applied s 20B(1) to find appellant liable to be declared a serious repeat offender – declaration may have less relevance where a person becomes liable to serve balance of a sentence of life imprisonment or any lengthy term of imprisonment for offences other than murder but nevertheless enables Court to impose a disproportional sentence for breaching offences – declaration will fetter discretion of Judge fixing non-parole period for total sentence to be served following breach – Judge will be required to apply s 20B(4)(b) in determination of non-parole period. New non-parole period will be required to be no less than four fifths of head sentence fixed for breaching offences – sentence not manifestly excessive – no reason to depart from principles enunciated in R v Armstrong – no error demonstrated in approach by Sentencing Judge – appeal dismissed.
Criminal Law (Sentencing) Act 1988 ss 18a, 20a, 20B, 20B(1), 20B(3)(a), 20B(3)(b), 20B(4)(a), 20B(4)(b), 32, 32(3), 32(5)(b), 32(5)(ab), 32(5)(ba); Criminal Law Consolidation Act 1935 ss 19(2), 20(3), 20(3)(a), 23(1), 24(1)(b); Correctional Services Act 1982 ss 67(3)(a), 67(4)(a), 67(4)(b), 67(4)(h), 75, referred to.
R v Armstrong (1990) 54 SASR 207, applied.
R v Saunders [2011] SASCFC 37; R v Beauregard-Smith (2001) 79 SASR 408; R v Piotrowski (1990) 156 LSJS 254, considered.

R v BRADY
[2011] SASCFC 79
Court of Criminal Appeal: Nyland, Anderson and David JJ

NYLAND J: This appeal is concerned with the application of s 20B of the Criminal Law (Sentencing Act) 1988 (“Sentencing Act”) to the sentence of a person who…

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 Brady

Details

AGLC: R v Brady [2011] SASCFC 79
Case: [2011] SASCFC 79
Decision Date: 4 August 2011

CaseChat Overview and Summary

The appeal concerned a sentencing decision made by a District Court Judge in South Australia. The appellant, R v Brady, had been convicted of assault and aggravated causing harm with intent to cause harm. These offences constituted a breach of parole for a previous life sentence for murder. The sentencing judge declared the appellant a serious repeat offender and imposed a sentence of six years imprisonment for the new offences, declining to fix a non-parole period and requiring the appellant to apply to the Supreme Court for this purpose, following the principles in *R v Armstrong*.

The legal issues before the appellate court were whether the sentencing judge erred in declaring the appellant a serious repeat offender, particularly in light of the reactivation of his previous life sentence. The court was also asked to consider whether the declaration was futile, the applicability of specific provisions of the *Sentencing Act* to the total sentence to be served following a parole breach, whether the declaration fettered the discretion of the Supreme Court in fixing a new non-parole period, and whether the sentence imposed was manifestly excessive, especially in light of recent amendments to the *Sentencing Act*.

The appellate court held that the sentencing judge had correctly applied section 20B(1) of the *Sentencing Act* to declare the appellant a serious repeat offender. While acknowledging that such a declaration might have less relevance when a person is liable to serve the balance of a life sentence, the court found that it still enabled the imposition of a disproportionate sentence for the breaching offences. The declaration was found to fetter the discretion of the judge who fixes the non-parole period for the total sentence, requiring adherence to section 20B(4)(b), which mandates that the new non-parole period be no less than four-fifths of the head sentence for the breaching offences. The court found no error in the sentencing judge's approach, nor that the sentence was manifestly excessive, and therefore dismissed the appeal.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As the Judge gave credit to the appellant for a plea of guilty, the starting point for the sentence was a little higher than the 6 years finally imposed but, as the Judge indicated, that error was to the appellant’s advantage. In my opinion, the sentence of 6 years imposed by the Judge was well within a range appropriate for this offending without needing to have any recourse to the s 20B declaration. To the extent that the 6 year sentence represented a disproportionate sentence following the s 20B declaration, in my opinion it can be regarded as moderate.Ground 3 – The decision in R v Armstrong[17][17] (1990) 54 SASR 207. Section 32 Sentencing Act is concerned with the duty of the Court to fix or extend a non-parole period but it also includes a provision permitting the Court to decline to fix a non-parole period in certain circumstances. This was a matter which was considered in R v Armstrong, the circumstances of which are similar to those which arose in the present case. The appellant in Armstrong was convicted of a number of counts of housebreaking and larceny. He was on parole when the offences occurred, serving a life sentence for murder. A District Court Judge sentenced him to an unsuspended term of imprisonment for the dishonesty offences, which meant that the appellant was liable to serve the balance of his life sentence. The Full Court considered the effect upon the appellant’s parole of the fresh sentences imposed in the District Court and discussed the construction of s 32 Sentencing Act. Cox J (with whom King CJ and Duggan J agreed) said at [228]: That leaves the question whether the learned judge acted correctly in declining to fix a non-parole period in the case of this appellant. There is no doubt that the judge had power to fix a non-parole period here. Subsection (5)(b) prevents a court of summary jurisdiction from fixing or extending a non-parole period in the case of a person who is already serving a sentence of life imprisonment, but there is no such restriction expressed in the case of the District Court and I see no good reason for inferring one. When it is a matter of extending an existing non-parole period fixed by the Supreme Court, the District Court judge will have no option. Whatever the gravity of the earlier offence, he will have to make the subs (1) order himself. No-one else has the power to do it. The choice between acting or declining will only arise, with these mixed sentences, where for some reason the prisoner is not subject to an existing non-parole period. Such instances will be uncommon. In the case of many offences triable in the Supreme Court, the simplest and desirable course will be for the District Court judge himself to fix the non-parole period. Where, however, it is a matter of taking into account a prior conviction for murder, and the consequent life sentence, I think it will normally be desirable for the District Court to decline jurisdiction, as it were, and to allow the prisoner to make an application under subs(3), which will necessarily be to the Supreme Court. See subs (10)(c)(ii). In that way the non-parole period can be fixed by the Court that is used to dealing with very serious crimes and the non-parole periods appropriate to them. I see no difficulty in applying the words “any other circumstance” in subs (5)(c)(iv) to such a case. In my opinion, the learned judge acted correctly in declining to fix a non-parole period here.

Ratio Decidendi

Legal Principle Established

In the course of sentencing submissions, counsel for the DPP made an application to the Judge for a declaration that the appellant be declared a serious repeat offender pursuant to the provisions of s 20B Sentencing Act. Section 20B is in the following terms:20B—Declaration that person is serious repeat offender (1) A person is liable to be declared a serious repeat offender if the following conditions apply:(a)the person (whether as an adult or as a youth)—(i)has committed on at least 3 separate occasions an offence to which this Division applies (whether or not the same offence on each occasion); and(ii)has been convicted of those offences; or(b)the person (whether as an adult or as a youth)—(i)has committed on at least 2 separate occasions a serious sexual offence against a person or persons under the age of 14 years (whether or not the same offence on each occasion); and(ii)has been convicted of those offences. The appellant opposed the making of the declaration, primarily on the ground that it would be “an exercise in futility” as the appellant had become liable to serve the balance of his sentence of life imprisonment as a result of breaching his parole by the commission of the subject offences. The Judge did not accept that submission. In his sentencing remarks the Judge reviewed the offending history of the appellant and had regard to the extensive submissions made by counsel for the appellant with respect to the circumstances surrounding the appellant’s childhood, adolescence and background. The Judge considered that those matters had been taken into account in the appellant’s favour on many occasions in the past and that the time had now come for the appellant’s personal circumstances to be regarded as secondary to the necessity to protect the community from his violent behaviour. He had regard to the provisions of s 20B(4)(a) which enabled him to impose a sentence which was not proportional to the offence and considered that s 20B had some work to do with respect to the head sentence. The Judge then made a declaration pursuant to s 20B(3)(b) Sentencing Act that the appellant was a serious repeat offender. Pursuant to s 18A Sentencing Act he sentenced the appellant to 6 years imprisonment for the two offences of which he had been found guilty. The Judge then referred to the decision of the Full Court in R v Armstrong,[4] and consistent with that authority, declined to fix a non-parole period and informed the appellant that he would have to make an application to the Supreme Court pursuant to s 32(3) of the Sentencing Act for that to occur.[4] (1990) 54 SASR 207.Ground 1 – Did the Judge err in declaring appellant a serious repeat offender? Section 20B(1) Sentencing Act provides that a person is liable to be declared a serious repeat offender if, inter alia, he has on at least three separate occasions committed a serious offence which has resulted in a sentence of imprisonment other than a suspended sentence. In this case there was no dispute that the discretion pursuant to s 20B(1) was enlivened. The appellant’s extensive offending history, included the following offences, which were serious offences as defined by s 20A:[5][5] In his remarks the Sentencing Judge also referred to a conviction for occasioning actual bodily harm committed on 29 May 1984. However that was the result of a misunderstanding of a document tendered by counsel for the DPP who had overlooked the fact that no term of imprisonment had been imposed for that particular offence. It therefore should have been excluded from consideration. However, that error is of no moment, in view of the substantial number of other offences to which the section applied. 1 March 1983 – Indecent assault and rape.24 September 1986 – Assault occasioning actual bodily harm.12 November 1986 – Unlawful wounding.7 February 1989 – Robbery with violence.12 November 1992 – Murder.9 December 1992 – Assault occasioning actual bodily harm.5 June 1997 – Assault occasioning actual bodily harm.8 July 1997 – Assault occasioning actual bodily harm.16 October 2001 – Assault occasioning actual bodily harm.