R v Bridgland

Case [2016] SASCFC 28

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BRIDGLAND

[2016] SASCFC 28

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Lovell)

21 March 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - THREATS TO KILL

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

Appeal against sentence. The appellant, Robert Shane Bridgland, was originally committed for trial in the District Court on four counts of aggravated threatening to kill. On the day of trial, the Information was amended to four counts of aggravated threatening to cause harm. The appellant pleaded guilty to the amended counts. The Judge imposed a sentence of imprisonment of three years, after making a reduction of 25 per cent on account of the appellant's pleas of guilty. A non-parole period of two years was fixed. It was accepted that the appellant pleaded guilty to the new offences not more than four weeks after he first appeared in court in relation to those offences.

Whether the Judge erred in failing to apply the maximum discount available pursuant to section 10C of the Criminal Law (Sentencing) Act 1988 (SA). Whether the Judge failed to provide adequate reasons.

Held per Lovell J (Peek J agreeing in separate reasons) (dismissing the appeal):

(1) The sentencing Judge's discretion as to the appropriate discount for an early plea is retained under section 10C of the Criminal Law (Sentencing) Act 1988 (SA).

(2)  It was open for the sentencing Judge to take the view that the utilitarian purpose of section 10C had been reduced by the conduct of the appellant.

(3)  The sentencing Judge used the incorrect sub-section when taking into account the circumstances of the plea.

(4)  On resentencing the same sentence is imposed. 

Held per Gray J (allowing the appeal):

(1)  If the Judge was considering denying the appellant the full discount, he should have raised the matter with counsel during sentencing submissions.

(2) Having regard to the manner in which this Court has previously addressed the application of section 10C of the Sentencing Act, the appellant should receive the full benefit of his early guilty plea.

(3)  The Judge failed to provide adequate reasons for denying the appellant the full discount.

Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(b), s 5AA(1)(g)(iv), s 19(1), s19(2), s 85(2), s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 9(1), s 10C(2), s 10C(4), s 18A; Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill 2012 (SA), referred to.
R v Wakefield (2015) 121 SASR 569; R v Dwyer (2015) 121 SASR 587; R v McPhee [2014] SASCFC 107; R v Capaldo [2015] SASCFC 56; R v Koch [2015] SASCFC 31; R v Copeland (No 2) (2010) 108 SASR 398; Dal Piva v Maynard (2000) 112 LGERA 165;

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R v Bridgland [2016] SASCFC 28
Case
[2016] SASCFC 28
Decision Date

CaseChat Overview and Summary

The appellant, Robert Shane Bridgland, appealed against his sentence imposed in the District Court for four counts of aggravated threatening to cause harm. The sentencing judge had imposed a head sentence of three years imprisonment with a non-parole period of two years, after applying a 25 per cent reduction for the appellant's guilty pleas. The charges arose from threats made to the appellant's mother and three children, with aggravating features including the threatened use of a knife and the victims being children residing with the appellant.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge erred in failing to adequately explain why a discount of less than the maximum permitted by section 10C of the Sentencing Act 1935 (SA) was applied for the appellant's guilty pleas. The appellant had pleaded guilty to amended charges on the day of trial, and the Director of Public Prosecutions conceded that the amended charges engaged section 10C(2)(a) of the Sentencing Act, which permits a discount of up to 40 per cent.

The Court reasoned that section 10C of the Sentencing Act is designed to encourage early guilty pleas by providing transparent and substantial discounts, thereby reducing delays in the criminal justice system. While the provision confers a discretion on the sentencing judge, any departure from the maximum available discount must be accompanied by adequate reasons. The Court noted that the sentencing judge had failed to provide sufficient explanation for not affording the appellant the full 40 per cent discount, despite the Director's concession that the amended charges engaged the provision. The Court emphasised that defence counsel must be able to advise their clients with confidence regarding the benefits of early pleas.

Allowing the appeal, the Court resentenced the appellant. A notional sentence of four years imprisonment was reduced by 40 per cent, resulting in a sentence of two years, four months, and three weeks imprisonment. A non-parole period of one year, four months, and three weeks was fixed, with the sentence to commence on the date of the appellant's arrest, 12 June 2014.

Orders

Orders of the court

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Background

Background to the litigation

The defendant and appellant, Robert Shane Bridgland, was sentenced in the District Court for four counts of aggravated threatening to cause harm.[1] The Judge commenced with a notional sentence of four years of imprisonment. This was reduced by 25 per cent on account of the defendant’s pleas of guilty. As a consequence, a head sentence of three years of imprisonment with a non-parole period of two years was imposed.[1] Criminal Law Consolidation Act 1935 (SA) section 19(2).Background On 12 June 2014, the defendant was arrested and charged with four counts of aggravated threatening to kill.[2] The counts related to his mother and his three children. Each offence was aggravated as there was a threat to use a knife.[3] Three of the offences were further aggravated as the victims were children who regularly resided with the defendant.[4] The defendant was also charged with one count of property damage.[5] On 7 October 2014, the defendant was committed for trial on the above offences.[2] Criminal Law Consolidation Act 1935 (SA) section 19(1).[3] Criminal Law Consolidation Act 1935 (SA) section 5AA(1)(b).[4] Criminal Law Consolidation Act 1935 (SA) section 5AA(1)(g)(iv).[5] Criminal Law Consolidation Act 1935 (SA) section 85(2). On 10 November 2014, the defendant appeared in the District Court on the same charges upon which he was committed. The arraignment was adjourned to enable a psychiatric report to be obtained. On 15 December 2014, the defendant was arraigned on the four counts of aggravated threatening to kill and one count of property damage and pleaded not guilty. The charges were the same charges as those with which he was originally charged. The District Court was advised that the defendant was competent to plead to the charges. On 21 January 2015, a trial date of 18 May 2015 was fixed. On the day of trial, the Information was amended to four counts of aggravated threatening to cause harm, contrary to section 19(2) of the Criminal Law Consolidation Act 1935 (SA). The defendant pleaded guilty to the amended counts. A nolle prosequi was entered in relation to the property damage charge. The pleas were entered on the basis of declarations filed in the Magistrates Court and served on the defendant. There was no dispute as to any of the allegations in the declarations, including the nature and content of the threats alleged by the victims. In relation to each count to which the defendant pleaded guilty, the aggravating feature of threatening to use a knife was not varied nor amended from the time he was initially charged. On appeal, counsel for the Director of Public Prosecutions acknowledged that the offences to which the defendant ultimately pleaded were neither common law nor statutory alternatives to aggravated threatening to kill. The offences to which he pleaded were therefore not offences upon which he had previously appeared. Counsel for the Director accepted that the defendant pleaded guilty to the new offences not more than four weeks after he first appeared in Court in relation to those offences.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
I would resentence the defendant to a notional term of imprisonment of four years. I would reduce that notional sentence by 40 per cent on account of the defendant’s guilty pleas, resulting in a sentence of two years, four months and three weeks. Conclusion I would allow the appeal. I would resentence the defendant to a term of imprisonment of two years, four months and three weeks and fix a non-parole period of one year, four months and three weeks. I would order that the sentence commence on 12 June 2014.PEEK J: I gratefully adopt the recitation of the background and facts set out in the judgments of Gray J and Lovell J. In sentencing submissions, the prosecutor is reported as having said:The defendant pleaded guilty on the morning of trial; however, in light of the amended charges I am instructed that he’s now in fact entitled to 40% discount pursuant to s 10C(2)(a) of the Sentencing Act for his pleas. (Emphasis added) Like Lovell J, I consider that “entitled to 40%” is a typing error and that “entitled to up to 40%” was most likely said; or, if not said, was so understood by both counsel and the Judge. This follows from the immediate context, namely that the prosecutor was making it clear that the prosecution accepted that, in the particular circumstances that had here arisen, s 10C(2)(a) of the Sentencing Act was engaged. But that provision makes it quite clear that the entitlement is a percentage up to a maximum of 40 per cent rather than a flat 40 per cent discount; I consider it to be clear that the concession being made was that the laying of amended charges in the present case had the effect of engaging s 10C(2)(a) so that the maximum percentage of 40 per cent was available to the Judge but not that the maximum figure should necessarily be selected. The quantification of the actual discount to be imposed remained very much a live issue in this particular case and defence counsel should have realised that this was so. It was for counsel to make appropriate submissions on the topic if it were wished to do so. There is no doubt that full weight must be given to the utilitarian benefit of pleas of guilty as explained by this Court in decisions such as Wakefield,[15] Dwyer[16] McPhee[17] and Capaldo.[18] Those advising defendants must be able to advise with some certainty that an early plea will lead to a substantial discount.[15] R v Wakefield (2015) 121 SASR 569.[16] R v Dwyer (2015) 121 SASR 587.[17] R v McPhee [2014] SASCFC 107.[18] R v Capaldo [2015] SASCFC 56, [38]-[44]. However, against the background of that very important primary consideration, the Judge retains a discretion to grant a discount of less than the maximum discount allowable. Various factors that the Judge may take into account when coming to a decision to award less than the maximum discount in circumstances such as the present are set out in s 10C(4). The point of retaining a discretion is that there may arise from time to time a combination of circumstances such that the imposition of less than the maximum discount may be justified.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Finally, it was the Director’s submission that a discount of 40 per cent in circumstances where the defendant accepts all aspects of the facts alleged against him from the time he was originally charged, accepts the aggravating features alleged against him and only offers to plead guilty to a different lesser offence at the time of the trial would undermine the purposes of the Act and would shake confidence in the administration of justice.Consideration – Inadequacy of Reasons The defendant in the present proceeding was entitled to a discount of up to 40 per cent given the timing of his guilty plea. Section 10C of the Sentencing Act makes it plain that the court has a discretion in respect of the reduction on account of a plea of guilty. However, as Stanley J observed in Dwyer:[14]In my view, the learned sentencing judge erred in failing to afford the appellant the entire discount permitted by s 10C(2)(b). As I have noted, the learned sentencing judge reduced the head sentence he would otherwise have imposed by reason of the appellant’s pleas of guilty by 25%. Pursuant to s 10C(2)(b) a discretion is conferred permitting the judge to reduce the appellant’s sentence by up to 30%. In my view, the learned sentencing judge failed to explain adequately why he did not reduce the sentence he would otherwise have imposed by the maximum available. In this context it is important to recognise the basis of the scheme enacted pursuant to s 10C. There is no doubt that s 10C, like s 10B, confers a discretion upon a sentencing court. Recognition that the power conferred by s 10C is discretionary does not detract from the utilitarian purpose of the provision. The purpose of s 10C is to regulate and make transparent sentencing discounts for guilty pleas and to encourage offenders to plead early, thereby decreasing delays in the criminal justice system. The power conferred must be construed accordingly. In R v McPhee Nicholson J, with whom Vanstone and Blue JJ agreed, said:In my view, sentencing judges should take a robust view with respect to pleas which satisfy the various criteria set out in s10C relevant to the different maxima provided for. Ultimately, the actual discount provided remains discretionary and each case will need to be determined according to its own facts. Nevertheless, if guilty persons are to be encouraged to plead early so as to provide the utilitarian benefits to the administration of justice contemplated, they will need to be confident that their expectations of a substantial discount in accordance with the requirements of the legislative regime will be met. Related to this is the need for defence counsel to be in a position to advise their clients on this topic with confidence.If the sentencing judge, exercising the discretion conferred by s 10C, is not to allow the maximum discount permitted by the provision for a guilty plea, it is incumbent upon the judge to provide adequate reasons for the departure from the maximum allowed. The efficacy of the scheme will be undermined if defence counsel and their clients cannot be confident in their expectations of the advantage of an early guilty plea. None of this detracts from the power undoubtedly reposed in the sentencing judge to depart from the maximum where good reason exists but if that is to occur, the sentencing judge must explain why.[Footnotes omitted.][14] R v Dwyer (2015) 121 SASR 587, 597-8.