R v Bryden
[2006] SASC 203
•13 July 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v BRYDEN
[2006] SASC 203
Judgment of The Court of Criminal Appeal
(The Honourable Justice Perry, The Honourable Justice Gray and The Honourable Justice Vanstone)
13 July 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - TIME SPENT IN CUSTODY
Appellant pleaded guilty to threatening harm and two counts of assault with intent to resist lawful apprehension - sentenced in District Court to imprisonment for one year and eight months with non-parole period of ten months - appeal against sentence - whether sentence manifestly excessive - whether appropriate credit given for time spent in custody and on home detention bail both in terms of head sentence and non-parole period - error in approach to allowing for time in custody - sentence found to be manifestly excessive - appeal allowed - sentence set aside - sentence of one year with non-parole period of four months substituted.
Criminal Law (Sentencing) Act 1988 (SA), s 10(1)(n), s 18A, referred to.
R v Malesevic (1999) 204 LSJS 32; Markarian v The Queen (2005) 215 ALR 213; Dinsdale v The Queen (2000) 202 CLR 321; AB v The Queen (1999) 198 CLR 111; Wong v The Queen (2001) 207 CLR 584; Johnson v The Queen (2004) 205 ALR 346; R v Carpentieri (2001) 81 SASR 164; R v Adami (1989) 51 SASR 229; R v Mangelsdorf (1995) 66 SASR 60; R v Wirth (1976) 14 SASR 291; Bates v Police (1997) 70 SASR 66; Neill v Police [1999] SASC 270; R v Penno (2004) 236 LSJS 457; R v Richards [2006] SASC 60; R v Harris & Simmonds (1992) 59 SASR 300; R v Wall (2000) 209 LSJS 135; R v Powell (2001) 81 SASR 9; R v Place (2002) 81 SASR 395, considered.
R v BRYDEN
[2006] SASC 203Court of Criminal Appeal: Perry, Gray and Vanstone JJ
PERRY J. I agree with the order proposed by Vanstone J and with her reasons.
GRAY J:
Introduction
This is an appeal against sentence.
The appellant, Raymond John Bryden, pleaded guilty to one count of threatening harm and two counts of assault with intent to resist lawful apprehension. Both charges are minor indictable and carry a maximum penalty of imprisonment for five years.
On 7 April 2006, the appellant was sentenced by a Judge of the District Court to imprisonment for one year and eight months. The sentencing Judge fixed a non-parole period of ten months, but declined to suspend the sentence.
The appellant had been remanded in custody from 2 October to 20 December 2004 on these matters. The appellant was released on home detention bail from 20 December 2004 to 25 May 2005. The appellant was again remanded in custody from 25 May until 15 August 2005 on fresh charges, which were subsequently withdrawn. Bail was refused in relation to those matters because of the earlier offending. On 15 August 2005, the appellant was again placed on home detention bail until 7 April 2006, the date of sentence. In total, therefore, at the time of the sentence, the appellant had served five and a half months in custody and thirteen months on home detention bail.
The appellant was also initially charged with threatening life. However, this charge was subsequently withdrawn. But for the initial inclusion of this charge, the matters the subject of this appeal would have been dealt with in the Magistrates Court
The appellant appeals on the grounds that the sentencing Judge erred both by not suspending the sentence of imprisonment and by imposing a sentence that was manifestly excessive in the circumstances. Counsel sought to draw particular attention to the hardship that a custodial sentence would cause to the appellant’s dependents (his de facto wife and two young children).
Circumstances of the offending
The sentencing Judge described the events prior to, and constituting the offending in the following terms:
All pleas relate to an incident which occurred on 2 October 2004 at or near your house at O’Sullivan Beach.
You had been living there with your de facto partner and your two young children, now aged six and nine. There were difficulties in the relationship with your partner, aggravated by your depression, your participation in the methadone program, your being affected by alcohol or drugs, and her own alcoholism. A heated argument developed between you and could be heard outside by neighbours. Your partner and an acquaintance went to leave the premises in a car but you broke a window of the car.
The victim Watson was your next-door neighbour and rang the police because of the commotion. He went out to the front of the premises and your partner walked over to him. He was concerned about the welfare of the two children, as your daughter was with your partner but your young son was not to be seen. At that point you emerged from the house and called out to Watson, asking if he had a problem, and you said you would kill him. You said this a number of times and then walked towards him in an aggressive manner. You were carrying a wooden-handled knife in your belt, which you then produced. Watson then ran off and you chased him. As he was running away you threw the knife at him, but it did not hit him. You continued to chase him into a nearby reserve but eventually gave up and returned to your premises.
A few minutes later the two police officers arrived, but by this time you were inside with your young son. They approached the premises, whereupon you came out of the front door, threatened them and shouted obscenities. You then went to a wheelie bin at the side of the house, picked up the metal end of a garden shovel and raised it above your head with both hands. You then ran at the police officers in an aggressive manner. They each apprehended the situation was a serious one and they were obliged to draw their weapons and level them at you. They told you to drop the shovel several times, but you continued to advance, uttering threats and shouting obscenities. All of this took place in the presence of your young son. Soon after these events, you dropped the shovel and surrendered, but as you were being restrained you again started to struggle, although you were soon subdued.
The whole incident involved considerable violence. I have taken account of certain of the remarks contained in the victim impact statement of Constable Paterson, as well as the obvious impact your actions had upon the other police officer and upon your neighbour. It appears you thought the neighbour was involving himself in something that was not his business, but I am satisfied that he was, in fact, attempting to assist your partner and the children in what was, even by then, a violent situation. Your conduct towards him was totally unjustified.
…
Whist I am persuaded that the throwing of the knife was, in the particular circumstances and having regard to its size and weight, not as serious as it might sound, the level of aggression and violence which were exhibited was considerable.
Personal and criminal antecedents
At the time of sentencing, the appellant was aged 41 years. The appellant attended school until Year 11. He became involved in alcohol and drugs at a young age, including the heavy use of amphetamines and heroin. At the time of sentencing, the appellant had been on a methadone program for five years.
The appellant has been in a long-term relationship with his de facto partner for about seven years. There are two children from the relationship. The appellant’s partner, due to her alcoholism and a chronic spinal illness, is in receipt of a disability pension. As a consequence of his partner’s disabilities, the appellant has been the primary caregiver in the family. He ceased working outside of the home some six or seven years prior to the date of sentencing. The appellant’s relationship with his partner has been affected by their respective drug and alcohol addictions.
A short time prior to the incident the subject of this appeal, following a period of some difficulty, the appellant and his partner separated. They have since reconciled. At the time of sentencing, they had moved into a new home, purchased by the appellant. Their children were attending school and were progressing reasonably.
The appellant’s antecedent report discloses a relatively serious criminal history, involving drug- and alcohol-related offences, anti-social behaviour, offences of dishonesty, the more serious motor vehicle offences, offences of violence and offences of resisting apprehension. The appellant has been placed on suspended sentences on three occasions. He has twice breached the terms of bonds. He has previously served a short term of imprisonment.
Significantly, however, prior to the offending the subject of this appeal, the appellant had not contravened the law since 1999.
The Sentence
In fixing the sentence, the Judge proceeded to impose a single penalty in respect of all three offences. He began with a head sentence of three and half years imprisonment, which he reduced to one year and eight months on account of the appellant’s guilty pleas as well as the time that he had spent both in custody and on home detention bail. The Judge made a single reduction on account of all three factors.
The Judge declined to suspend the sentence. The Judge then proceeded to fix a non-parole period of ten months:
I have, however, thought it appropriate in the circumstances to fix a non-parole period which is shorter than that which might ordinarily be extended and I have done that to afford you the chance to show that you can rehabilitate yourself. The non-parole period will be 10 months. Both the head sentence and that period will commence from today.
The Appeal
In the recent decision of the High Court in Markarian[1] in their joint judgment, Gleeson CJ, Gummow, Hayne and Callinan JJ discussed the approach that an appeal court should adopt in considering an appeal against sentence: [2]
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 R, 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".
The court reaffirmed their decisions in AB[3] and Wong,[4] in which the High Court stated that the task of a sentencer is to take account of all of the relevant factors and to arrive at a result.
[1] Markarian v R (2005) 215 ALR 213; see also Dinsdale v The Queen (2000) 202 CLR 321.
[2] Markarian v R (2005) 215 ALR 213 at [25] (footnote omitted).
[3] AB v R (1999) 198 CLR 111.
[4] Wong v R (2001) 207 CLR 584.
Misapprehension of fact
The first misapprehension of fact made by the sentencing Judge relates to the so-called threats to kill. The Judge described the threats in the following terms:
At that point you emerged from the house and called out to [your neighbour], asking if he had a problem, and you said you would kill him. You said this a number of times and then walked towards him in an aggressive manner. (emphasis added).
During the course of sentencing submissions, counsel for the appellant clearly emphasised that the plea of guilty was made on the basis that the appellant admitted to yelling obscenities at his neighbour. Counsel stated:
What we admit is yelling obscenities at him without going into the detail. Chasing him down the street and throwing the knife in his direction.
The remarks of the sentencing Judge are therefore at odds with the factual basis of the plea advanced by the defence and accepted by the Crown.
It is to be borne in mind that the charge of threatening life, initially laid, was subsequently withdrawn. The sentencing Judge appears to have treated the words uttered by the appellant literally - namely, as a threat to kill. It is clear, from both the context and from the factual basis upon which the plea was entered, that the words uttered by the appellant were not intended as a threat to life. Properly understood, and in accordance with the submissions of his counsel, the words were intended to have the effect of causing the neighbour to “back off” and to stop interfering in what the appellant perceived to have been none of the neighbour’s business.
The second misapprehension of fact made by the sentencing Judge was in relation to the characterisation of the throwing of the knife. During the course of sentencing remarks, the Judge stated:
[Your neighbour] then ran off and you chased him. As he was running away you threw the knife at him, but it did not hit him. (emphasis added).
Later in the course of his remarks, the Judge again referred to the throwing of the knife:
Whilst I am persuaded that the throwing of the knife was, in the particular circumstances and having regard to its size and weight, not as serious as it might sound, the level of aggression and violence which were exhibited was considerable.
During the course of sentencing submissions, counsel for the appellant made the following submission regarding the knife:
There was an altercation between [the appellant] and the neighbour because he thought the neighbour was getting involved in a situation which wasn’t his business. That is the context in which he chased the neighbour down the road. In doing so, he issued threats to the neighbour and threw a knife, not at the neighbour, but in the direction of the neighbour, the neighbour was some distance from him at that time.
The plea to threaten to cause harm is on the basis of those threats and the throwing of the knife in that [the appellant] intended to place the neighbour in fear of his safety.
In response, counsel for the prosecution sought to clarify the position with respect to the throwing of the knife, and did so in the following terms:
In relation to the throwing of the knife, the Crown acknowledges that this man was affected by his medication and alcohol, and so that it might be said that the throwing of the knife occurred with a reckless state of mind. However, it still did obviously land in the direction and the vicinity of Mr Watson on the front lawn, as we see it in the photos.
The sentencing Judge’s finding that the appellant threw the knife “at” his neighbour in circumstances where he considered “the level of aggression and violence which were exhibited was considerable” constitutes material error.
These two matters illustrate what counsel for the appellant submitted was, overall, an overstatement of the events by the sentencing Judge. The flavour of the Judge’s sentencing remarks, the language the Judge used and the Judge’s repeated references to the level of violence and aggression exhibited by the appellant, indicate that the Judge adopted a much more serious and grave view of the events than was open on the facts.
In Johnson,[5] the High Court concluded that an intermediate Court of Appeal had made a number of errors of fact when dealing with a sentence appeal. Having identified those errors, Gummow, Callinan and Heydon JJ observed:[6]
It is unfortunate that these errors have been made. The appellant was entitled to have the relevant factual matters carefully and accurately considered by the appellate court.
…
Application of a principle cannot obscure a fact. Facts either lend themselves to the application of a particular principle or not. The error in this regard was compounded by the serious factual misconception in relation to the fact in question, that there were two parcels rather than one.
…
Although the appellant needed leave to appeal to the Court of Criminal Appeal, he was granted that leave and accordingly became entitled to a proper consideration of his appeal, something which he has been denied for the reasons we have given.
These observations of the High Court make clear the principle that an offender has the right to expect that he or she will be sentenced upon an accurate factual analysis of the offence the subject of the conviction. A factual misapprehension on the part of a sentencing judge will constitute material error, giving rise to a necessity to re-sentence.
[5] Johnson v The Queen (2004) 205 ALR 346.
[6] Johnson v The Queen (2004) 205 ALR 346 at [32], [34]-[35].
Failure to have adequate regard to relevant factors
It appears from the sentencing remarks that the Judge failed to have sufficient regard to factors personal to the appellant, including his relationship with his de facto partner, both prior and subsequent to the offending, his role as primary provider and caregiver in his family and his antecedent history and in particular the fact that, but for a minor motor vehicle offence, he had not offended for five years prior to the offending the subject of this appeal.
The present offending occurred in the context of the breakdown of the appellant’s relationship with the woman who was his de facto partner and the mother of his children. Two weeks prior to the incident, the appellant had been diagnosed by a general practitioner as suffering from depression and had been prescribed Valium. At the time of the offending, the appellant was in a state of agitation, aggravated by the circumstances and by his depression. The sentencing Judge addressed these factors in the following terms:
A short time before this incident your relationship got into difficulties and there was a break-up. You went to your doctor and were prescribed Valium. The incident itself occurred when she returned to the house with a friend, both of them affected by alcohol.
However, the Judge made no reference to the appellant’s state of agitation. Moreover, although the Judge did refer to the break down of the appellant’s relationship with his de facto partner, he made no mention of its connection to the events the subject of the offending.
The appellant’s criminal history had altered in 1999, subsequent to his meeting his partner and their having children. The sentencing Judge referred to the appellant’s criminal history in the following terms:
Whilst your offending may have tailed off in seriousness since 1997 [when your relationship with your partner began], it has nonetheless reflected a disregard for the law and for authority, and your present offending is of the same order, albeit that it is of a more serious nature.
Although the Judge was correct to recognise that the appellant’s offending had “tailed off in seriousness” since 1997, he failed to give adequate weight to the fact that the appellant had not offended, with the exception of a minor motor vehicle offence, during the five years preceding the offences the subject of this appeal.
Since about 1998, the appellant has been the primary care provider for his partner and his two young children. His role is such that he was the recipient of a carer’s pension throughout that period. This pension was the family’s primary source of income.
During the course of his remarks, the sentencing Judge referred to the appellant’s role in his family in the following terms:
Your partner is on an invalid pension for her alcoholism and a chronic spinal illness and she also has a liver problem. In consequence, you have been the main caregiver in the family and you abandoned work six or seven years ago.
The Judge subsequently rejected the appellant’s submission that his special circumstances with respect to his family warranted a suspension of any term of imprisonment:
As to the question of suspension, I have considered what your counsel has put and, in particular, the question of the effect of any period of imprisonment upon the welfare of your dependants. I have been referred to the remarks of the Court of Criminal Appeal in the case of R v Richards [2006] SASC 60. As well, I have had regard to the observations in the psychological report.
I am not persuaded that good reason exists for suspending the sentence in your case. That is because of the seriousness of the offending, which I note took place in the presence of your young children, and because of your offender history, which is a very poor one.
At no point did the sentencing Judge recognise that the carer’s pension received by the appellant was the family’s primary source of income.
The appellant’s personal circumstances changed significantly between the date of the offending and the date of sentence. The appellant had reconciled with his partner. They had sought counselling, both together and independently. They had purchased a home where they lived together with their two children, who were both attending a nearby primary school. During the course of sentencing submissions, counsel for the appellant characterised the appellant as having “turned a corner”. His relationship and his family life had been stable for many months prior to the date of sentence. The Judge referred to these matters in the following terms:
You have since reconciled with your partner and I note you have moved into a new property, which you have purchased. You have placed your children at a new school and they are progressing reasonably.
This change in circumstances indicates that the appellant has prospects for rehabilitation. However, the sentencing remarks contained no reference at all of the appellant’s prospects for rehabilitation. Nor was there any indication that the sentencing Judge acknowledged the steps taken by the appellant to set his life on the right track.
It is well-established that in certain circumstances, a court may take into account the impact of a custodial sentence on dependants of a defendant. Section 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (SA) provides:
A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(n) the probable effect any sentence under consideration would have on dependants of the defendant;
This section has been described as encapsulating the common law position.[7] The common law principle was described by Wells J in Wirth[8] as follows:[9]
When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the Court in mitigation of that sentence?
…
Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court … It seems to me that courts would often do less than their clear duty – especially where the element of retribution, deterrenct [sic], or protection of society is the predominant consideration – if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so. … For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go.
[7] R v Carpentieri (2001) 81 SASR 164; R v Adami (1989) 51 SASR 229; R v Mangelsdorf (1995) 66 SASR 60 at 70.
[8] R v Wirth (1976) 14 SASR 291.
[9] R v Wirth (1976) 14 SASR 291 at 295-296.
As some degree of hardship will invariably be suffered by dependants, upon imprisonment of a defendant, hardship to those dependants will not generally be taken into account in a defendant’s favour except in extreme or extra-ordinary circumstances. In other words, the hardship must be of such a serious character as to call for a merciful approach to sentencing. This principle was confirmed by this court in Carpentieri,[10] Bates v Police,[11] Neill v Police,[12] Penno[13] and Richards[14].
[10] R v Carpentieri (2001) 81 SASR 164.
[11] Bates v Police (1997) 70 SASR 66.
[12] Neill v Police [1999] SASC 270.
[13] R v Penno (2004) 236 LSJS 457.
[14] R v Richards [2006] SASC 60.
The hardship to the dependants in this case is exceptional and thus called for a merciful approach. The appellant’s partner is severely disabled and the appellant has cared and provided for her and their children for many years. The incident giving rise to the offending arose because of strains in their relationship. The appellant and his partner have now overcome those problems. The children of the relationship have a heightened dependence on the appellant because of their mother’s illnesses. The sentencing Judge did not pay adequate regard to these factors.
Calculation of discounts and time spent in custody
As mentioned above, from the date of the offending to the date of sentence, the appellant spent a total of five and a half months in custody and thirteen months on home detention bail. In his remarks, the sentencing Judge noted that the appellant had spent a total of twelve weeks in prison. This was incorrect.
Later in the course of his remarks, when fixing the sentence, the Judge made a reduction on account of the time that the appellant had spent in custody and on home detention bail. Regrettably, in doing so, he also combined the reduction to be made on account of the guilty pleas:
I will impose a single penalty in respect to all [three offences]. But for your pleas, that would have been a sentence of three and a half years, but, on account of your pleas and taking account of the time you have spent in custody and, as well, the time you spent on home detention bail, the resulting head sentence will be one of one year and eight months.
This method of proceeding, particularly in light of the earlier misstatement of the period spent in custody, makes it impossible to ascertain the reduction that the Judge made on account of the three separate factors. This Court has stated and restated the need for the sentencing Judge to identify the reduction made on account of a plea of guilty.[15] In the present case this did not occur.
[15] R v Harris and Simmonds (1992) 59 SASR 300; R v Wall (2000) 209 LSJS 135; R v Powell (2001) 81 SASR 9; R v Place (2002) 81 SASR 395.
Re-sentence
Having identified error in the approach of the sentencing Judge, it is appropriate to proceed to re-sentence the appellant.
Given that the three offences arose from what can be described as a single series of events, it is appropriate to proceed pursuant to section 18A of the Criminal Law (Sentencing) Act to impose a single penalty in respect of all three offences.
I would commence with a starting point of imprisonment for two years and six months. I would reduce that sentence by six months to twenty-four months, on account of the appellant’s pleas of guilty. Notwithstanding that the pleas were entered “on the eve of trial”, they were made subsequent to negotiations between the prosecution and defence counsel which resulted in a significant downgrading of the offences charged. The appellant’s account, where it materially differed to that of the police, was accepted by the Crown. In these circumstances, the appellant is entitled to receive the full discount for his pleas.
I would then extend credit to the appellant for time spent in custody and on home detention bail, thereby further reducing the sentence by five and half months for the time spent in custody and four and a half months for the time spent on home detention bail. This results in a head sentence of fifteen months. I would fix a non-parole period of six months. In fixing a lower than normal non-parole period, I have had regard to the personal circumstances of the appellant, in particular the impact that a term of imprisonment will have upon his dependants.
In my opinion good reasons exists to suspend the sentence of imprisonment. I consider the appellant’s good record from 1999 is a clear indication that he had turned away from a life of crime. It is probable that this change occurred as the result of his relationship with his partner and children. The incident giving rise to the present offending arose out of a temporary strain to that relationship. Those problems have been now recently overcome. The appellant has already spent more than seven months in custody and some thirteen months on home detention bail with respect to this offending. Having regard to all these circumstances, I would suspend the sentence.
Conclusion
I would sentence the appellant to fifteen months’ imprisonment. I would fix a non-parole period of six months. I would suspend the sentence on the appellant’s entry into a two-year good behaviour bond.
VANSTONE J: The appellant appeals by leave against the sentence imposed upon him following his pleas of guilty in the District Court to threatening harm and two counts of assault with intent to resist lawful apprehension.
All three offences arose out of an incident on 2 October 2004. Each carries a maximum penalty of five years imprisonment.
Exercising his power to impose a single sentence, the sentencing Judge imposed a term of one year and eight months, with a non-parole period of 10 months, to commence upon the day of sentence, being 7 April 2006.
The appellant complains that the sentence is manifestly excessive and that it should have been suspended.
The offences occurred at a time when the appellant was living with his de facto partner and their two young children at a house at O’Sullivan Beach. Difficulties had developed in the relationship, in part a product of the appellant’s depression, his participation in the methadone program and his partner’s alcoholism.
A heated argument developed late one afternoon. It was heard outside by neighbours, one of whom telephoned the police. That person is the victim of the first count, that is, threatening harm.
After ringing the police, the victim went to the front of his premises, which were next door to the appellant’s premises. The appellant’s partner walked over to him, with her young daughter. At that point the appellant emerged from the house, called out to the neighbour and threatened to harm him. The appellant walked towards him in an aggressive manner and produced a wooden-handled knife. The neighbour ran off. The appellant pursued him. As he was running away, the appellant threw the knife in the direction of the neighbour. It did not hit him. The chase continued in a nearby reserve, but eventually the appellant gave up and returned to his premises.
A few minutes later two police officers arrived. They are respectively the victims of the other two charges, that is, assault with intent to resist arrest.
As the police officers approached the house, the appellant emerged from the front door with his young son, threatening the police and shouting obscenities. From the front yard of the house he picked up a metal garden shovel from which the handle had been broken, and ran at the police officers with it raised above his head.
The police officers viewed the situation as serious, and presented their weapons, levelling them at the appellant. The appellant refused their request to drop the shovel and continued to advance, uttering threats and obscenities.
All of this was in the presence of the young son who was paralysed with fear and upset. Eventually the appellant dropped the shovel and surrendered. However, on being restrained, he continued to struggle before he was eventually subdued. The seriousness of this conduct is underlined by its capacity to have escalated.
The appellant is now 41 years of age. He has a long history of prior offending dating back to 1982. Most of the previous offences involved the possession or administration of drugs, traffic offences and being drunk and disorderly. In 1997 the appellant was convicted of assault occasioning actual bodily harm and sentenced to 28 days imprisonment. He has had the benefit of three previous suspended sentences of which two were breached.
The pleas of guilty were entered at a time proximate to the date set for trial. By that time the appellant had spent some five and a half months in custody referable to these charges, as well as 13 months on home detention bail.
The Judge took as his starting point a sentence of three and a half years imprisonment. He then purported to make a single deduction from that on account of the pleas of guilty, the time spent in custody and the time spent on home detention bail. That deduction was 22 months. The Judge then dealt with the question of suspension. In view of the seriousness of the offending and having regard to the appellant’s record he determined that there was no good reason to suspend.
The Judge next dealt with the non-parole period. He indicated that he would impose a period shorter than that which might ordinarily be fixed, giving the appellant the chance to demonstrate that he could rehabilitate himself. The period he fixed was 10 months.
I think that the starting point taken by the Judge was too high. I say that, notwithstanding the seriousness of the appellant’s conduct, and his antecedents. Then, in my view, there are several structural difficulties with the approach taken. In order to effect a reduction of 22 months from his starting point the Judge must have allowed in the order of 20 per cent for the pleas of guilty (about eight months) and about 14 months for the time spent in custody and on home detention bail. Both allowances seem generous in the circumstances. But having determined upon the credit to be given for the period in custody and on bail, the judges should have considered what corresponding allowance should be made to the non-parole period: R v Malesevic (1999) 204 LSJS 32. After all, had the judge been able to “backdate” the sentence, the deduction would have operated at both levels. When regard is had to the stated intention to set a lower than usual non-parole period, it is apparent that was not done. Accordingly, the sentencing process was flawed.
I respectfully suggest that in those circumstances an approach which would more likely guard against error and, additionally, better demonstrate that appropriate deductions are made is to first nominate a starting point and stipulate the credit to be given for pleas of guilty, thereby arriving at a notional head sentence; next fix the non-parole period, and finally make twin deductions for time in custody and (if appropriate) time on home detention bail.
I should add though, that the approach to be taken is for the sentencing judges to determine. Sentencing is not a mathematical exercise. The essential goal is to achieve a sentence which takes into account all relevant matters, with a degree of transparency and which is no more than is required to satisfy the punitive, deterrent and preventive purposes of punishment. The non-parole period must bear a proper relationship to the head sentence
In view of the errors identified it is necessary to consider the sentence afresh.
A starting point of in the order of two to two and a half years and a deduction of about 10 per cent for the belated pleas would seem to me to have been about in the middle of the available range. Taking the lower figure, the notional sentence would then become 22 months. In respect of that I would fix a non-parole period of 14 months. If 10 months is deducted for the periods of custody and home detention bail, the head sentence arrived at is 12 months and the non-parole period four months. Having regard to the seriousness of these offences, and to the appellant’s poor record, including his having previously had the benefit of suspended sentences, I would not find good reason to suspend the sentence. As before, the sentence would date from 7 April 2006.
In summary, the orders I would make are:
1. allow the appeal;
2. set aside the sentence imposed in the District Court;
3.impose a head sentence of 12 months imprisonment and a non-parole period of four months;
4. order that the sentence be taken to have commenced on 7 April 2006.
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