R v Brusnahan - [2017] SASCFC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRUSNAHAN
[2017] SASCFC 117
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)
8 September 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - SENTENCING METHODS
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - EFFECT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for permission to appeal against sentence by Director of Public Prosecutions. The respondent was sentenced for eight offences (counts 1 to 8) namely three counts of assault, two counts of aggravated assault, and a single count each of property damage, aggravated affray and recklessly causing serious harm to another. The charges arose from a course of alcohol fuelled violence committed on one evening.
The respondent pleaded guilty to counts 1 to 7 in the Magistrates Court on 3 July 2015. Count 8 was originally charged as an offence of causing serious harm with intent to cause serious harm. The respondent was arraigned in the District Court on count 8 on 3 August 2015 and pleaded not guilty. However, on 23 August 2016, the day after the trial was due to commence, he pleaded guilty to the alternative offence of recklessly causing serious harm. The plea was accepted by the Director in full satisfaction of the District Court Information filed on 3 August 2015.
For count 8, the Judge imposed a sentence of three years and six months, reduced by 30 per cent from five years for the respondent’s plea of guilty. His Honour set a non-parole period of 12 months for this offence. For counts 1 to 7, the Judge imposed a single sentence of eight months, one week and four days, reduced by approximately 30 per cent from a starting point of 12 months on account of the pleas, to be served wholly concurrently with the sentence imposed for count 8. The Judge declined to set a non-parole period in relation to counts 1 to 7 because the sentence was less than 12 months.
The Director of Public Prosecutions has applied for permission to appeal on the grounds that: the Judge erred in discounting the head sentence for count 8 by 30 per cent for the respondent’s plea of guilty; the non-parole period of 12 months is manifestly inadequate; the sentence for counts 1 to 7 is manifestly inadequate; and the Judge erred in ordering that the sentence for counts 1 to 7 be served wholly concurrently with the sentence imposed for count 8.
Held per Nicholson J (Kourakis CJ and Vanstone J agreeing), granting permission to appeal and allowing the appeal:
1. With respect to count 8, the respondent…

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 Brusnahan

Details

AGLC: R v Brusnahan [2017] SASCFC 117
Case: [2017] SASCFC 117
Decision Date: 8 September 2017

CaseChat Overview and Summary

This case concerned an appeal by the Director of Public Prosecutions against sentences imposed by the District Court on the respondent, who had pleaded guilty to multiple offences, including one count of recklessly causing serious harm. The primary dispute revolved around the appropriate sentencing approach, particularly concerning the application of section 18A of the Criminal Law (Sentencing) Act 1935 (SA) and the fixing of non-parole periods for multiple offences. The appeal was heard by Kourakis CJ, Vanstone and Nicholson JJ.

The legal issues before the Full Court included whether the District Court judge had erred in structuring the sentencing process by first fixing a non-parole period for one offence before sentencing for others, and whether the concurrency ordered between the sentences was excessive. Specifically, the court had to determine if the judge correctly applied section 18A, which governs the imposition of a single penalty for multiple offences, and if the resulting sentences adequately reflected the seriousness of the respondent's criminal conduct. The court also considered the principle of double jeopardy in the context of resentencing.

The Full Court reasoned that while section 18A(2) mandated a separate penalty for the offence of recklessly causing serious harm, this did not necessitate a separate non-parole period. The court clarified that section 32 of the Criminal Law (Sentencing) Act requires a single non-parole period to be fixed for the total period of imprisonment ordered, regardless of whether a single sentence under section 18A or multiple concurrent/cumulative sentences are imposed. The court found that the District Court judge had allowed too much concurrency, resulting in a sentence that was disproportionate to the seriousness of the offences.

Consequently, the Full Court granted permission to appeal, allowed the appeal, set aside the District Court sentences, and resentenced the respondent. The respondent was sentenced to four years and six months imprisonment for the offence of recklessly causing serious harm, with a non-parole period of two years and six months. For the remaining seven offences, a single term of imprisonment of one year and three months was imposed, with nine months to be served concurrently with the sentence for the serious harm offence and six months to be served cumulatively. The sentences were backdated to commence on 7 April 2017.

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

KOURAKIS CJ NICHOLSON J

The respondent’s actions on the night can be viewed as one extended course of drunken violence. As such and given that a large number of individual offences resulted, some scope for concurrency was warranted. However, significant concurrency had already been effected by using section 18A to order the single penalty of 12 months in total for all seven offences. To also allow this sentence to be served wholly concurrently with that for the count 8 offence was not justified. Further, in this case, and as counselled against by Wells J, the primary term did not “adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration”.Permission to appeal – Conclusion Each of the applicant’s grounds of appeal has been made out. Each one considered in isolation might not be sufficient to justify a grant of permission. However, in combination they have led to a sentencing outcome that is so disproportionate to the seriousness of the crime committed such that this Court should intervene. Further, taken together they demonstrate a need for this Court to intervene in order to establish the correct principles on which the sentence in this case should be based. I have reached this conclusion notwithstanding that the respondent will be exposed to the double jeopardy of being twice sentenced for his offending. I would grant permission to appeal, allow the appeal, set aside the District Court sentences and resentence the respondent.Resentence With respect to the offence of recklessly causing serious harm (count 8) and recognising that because of the respondent’s personal circumstances some leniency is warranted, I would start at imprisonment for five years, as did the Judge. I would reduce that by 10 per cent to four years and six months on account of the plea. For counts 1 to 7 and using section 18A of the Criminal Law (Sentencing) Act, I would impose a single penalty of imprisonment for 15 months. I have arrived at that single penalty in the following way. For counts 1 to 6, I would start at 12 months and reduce that by approximately 30 per cent to eight months and two weeks on account of the pleas. For count 7, I would start at nine months and reduce that by approximately 30 per cent to six months and two weeks on account of the plea. The accumulation of these two components results in the section 18A penalty of 15 months for counts 1 to 7. In order to accommodate the need for some further concurrency across all of the offences, I would order that six months of the section 18A sentence be served cumulatively on and to commence at the expiration of the sentence imposed for count 8. The balance of the section 18A sentence (nine months) is to be served concurrently with the sentence for count 8. With respect to the total period of imprisonment of five years, I would fix a non-parole period of two years and six months. I would backdate the sentence for count 8 so as to commence on 7 April 2017.Final orders I would make the following orders.(i)Permission for the Director to appeal allowed.(ii)Appeal allowed.(iii)Set aside the District Court sentences.(iv)The respondent is resentenced for the offence of recklessly causing serious harm (count 8) to imprisonment for four years and six months commencing from 7 April 2017.(v)The respondent is resentenced for counts 1 to 7 inclusive to the one term of imprisonment for one year and three months.(vi)The sentence in (v) is to be served as to nine months thereof concurrently with the sentence in (iv) but as to six months thereof cumulatively on and to commence at the expiration of the sentence in (iv).(vii)A non-parole period of two years and six months is fixed commencing on 7 April 2017.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ, NICHOLSON J

The issue of double jeopardy is a consideration relevant to the permission stage of a prosecution application. However, where permission is granted, double jeopardy considerations are no longer relevant at the resentencing stage.[15]Consideration[15] Section 340 of the Criminal Law Consolidation Act 1935,R v Harkin [2011] SASCFC 24; (2011) 109 SASR 334 at [35]-[37].A preliminary issue Whilst not a ground of appeal, the manner by which the Judge structured the sentence calls for comment. His Honour completed the sentencing process for count 8 including the fixing of a non-parole period before using section 18A to sentence for the other counts. In this latter respect, the Judge arrived at a sentence of less than one year and for this expressed reason declined to fix a non-parole period with reference to this separate sentence. Section 18A is in these terms.(1)If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.(2)However, if any of the offences for which the person is being sentenced is a prescribed designated offence, subsection (1) does not apply to the sentencing of the person for that offence (but nothing in this subsection affects the operation of subsection (1) in respect of the other offences).(3)In this section—prescribed designated offence has the same meaning as in section 38.The offence of recklessly causing serious harm is a prescribed designated offence in accordance with section 38(4) of the Criminal Law (Sentencing) Act. By virtue of subsection 18A(2) it could not be included when imposing a single penalty for all or a number of the offences committed. A separate penalty for count 8 had to be imposed. However, this did not require the judge to set a separate non-parole period. Section 18A says nothing about fixing a non-parole period and section 32 militates against the fixing of separate non-parole periods. Whether, for multiple offences, a single sentence using section 18A is imposed or multiple sentences with orders for concurrency and accumulation are imposed, only a single non-parole period is to be fixed relevant to the total period of imprisonment ordered. Section 32(1) of the Criminal Law (Sentencing) Act provides as follows.(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—(a) if the person is not subject to an existing non-parole period—fix a non-parole period; or(b) if the person is subject to an existing non-parole period—review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or(c) if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period—fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.In a case such as the present where section 18A(2) requires a separate penalty to be imposed for one of a number of offences, there are two potential approaches to the fixing of the non-parole period. In practical terms each approach should lead to the same result.