R v Burner - [2015] SASCFC 133

Supreme Court of South Australia
(Court of Criminal Appeal)
R v BURNER
[2015] SASCFC 133
Judgment of The Court of Criminal Appeal
(The Honourable Acting Chief Justice Gray, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)
18 September 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
Application for permission to appeal against sentence by the Director of Public Prosecutions. The respondent was jointly charged on Information with the offences of aggravated serious criminal trespass in a place of residence and aggravated causing serious harm with intent. The circumstances of aggravation were the use of weapons and being in company with another. The respondent and his co-accused brutally assaulted the victim in the course of recovering a drug debt. The victim was left with life-long mental impairment. The respondent pleaded guilty to aggravated causing serious harm with intent. The respondent initially indicated that he would contest the factual basis of the plea but ultimately agreed to be sentenced on the basis alleged by the prosecution. The respondent had lengthy criminal antecedents but accepted responsibility for the offending. He also co-operated fully with the authorities. The Judge sentenced the respondent to a term of imprisonment of two years and six months and fixed a non-parole period of one year and three months.
Whether the sentence was manifestly inadequate. Whether the non-parole period was manifestly inadequate.
Held per Gray ACJ (Kelly J and David AJ agreeing) (granting permission to appeal and allowing the appeal):
1. The sentence was manifestly inadequate.
2. The non-parole period was manifestly inadequate.
3. Respondent resentenced to a term of imprisonment of four years and two months, with a non-parole period of two years and one month, to take effect from 7 January 2015.
Criminal Law Consolidation Act 1935 (SA) s 23(1), s 170 and s 352, referred to.
Cameron v The Queen (2002) 209 CLR 339; R v Perdikoyiannis, Condo and Peabody [2011] SASCFC 82; R v Koch [2015] SASCFC 31; R v Campbell [2012] SASCFC 44; R v Nemer (2003) 87 SASR 168; R v Franceschini [2015] SASCFC 116; R v Harkin (2011) 109 SASR 334; Dinsdale v The Queen (2000) 202 CLR 321; R v Marikar [2010] SASCFC 36; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; R v Taylor [2015] SASCFC 132, considered.

R v BURNER
[2015] SASCFC 133
Court of Criminal Appeal: Gray ACJ, Kelly J and David AJ
GRAY ACJ.

This is a Crown appeal against sentence.
Introduction
The defendant and respondent, Kevin Gordon Burner, was jointly charged on Information with Nathan James Taylor with the offences of aggravated serious criminal trespass in a place of residence[1] and aggravated causing serious harm with intent.[2] It was alleged that, on 28 July 2012 at Henley Beach, Burner and Taylor entered the place of residence of DV as trespassers with the intention of committing theft and assault. It was further alleged that they committed the offences with the knowledge that DV was lawfully present, were in company with each other at the time of offence and used offensive weapons, namely a blade and a hammer, to commit the offence.
[1] Criminal Law Consolidation Act 1935 (SA) section 170(1).
[2] Criminal Law Consolidation Act 1935 (SA) section 23(1).
On 3 June 2013, Burner and Taylor were arraigned in the District Court. Burner pleaded not guilty to aggravated criminal trespass and guilty to aggravated causing serious harm with intent. Taylor pleaded not guilty to both counts. On 25 March 2014, about one week prior to trial, Taylor pleaded guilty to the offence of aggravated causing serious harm with intent. The pleas were accepted by the prosecutor in full satisfaction of the Information.
At first, Burner and Taylor indicated that they would dispute the allegations as to their roles in the offending. Ultimately, however, Burner agreed to be sentenced on the basis alleged by the prosecution. Taylor gave evidence at a disputed facts hearing.
On 30 April 2015, the Judge sentenced Burner to a period of imprisonment of two years and six months and fixed a non-parole period of one year and three months. The Director of Public Prosecutions has sought permission to appeal against the sentence on the basis that the head sentence and the non-parole period are manifestly inadequate.
The Judge sentenced Taylor on the same day to a period of imprisonment of three years, two months and two weeks. The Judge fixed a non-parole period of one year, seven months and one week. The Director also sought permission to appeal against Taylor’s sentence.[3]
[3] R v Taylor [2015] SASCFC 132.
The Facts
As earlier noted, Burner pleaded guilty to the offence of aggravated causing serious harm with intent. The circumstances of aggravation were that offensive weapons, namely a large pair of ornamental scissors and a hammer, were used in the attack and that Burner was in the company of another, namely Taylor, at the time of the offence.
In the early hours of 28 July 2012, Burner and Taylor attended the home of the victim in suburban Adelaide in an attempt to recover what was claimed to be a debt. When the victim’s responses were unsatisfactory, Burner and Taylor seriously assaulted him, intending to do him serious harm. The fact that violence and weapons were used and the fact that they were in company with each other were matters of aggravation which call for a sentence which includes a significant component for deterrence. The offence is an extremely serious one, as evidenced by the maximum penalty of 25 years’ imprisonment.
The force used and the brutality of the assault are evidenced by the injuries inflicted. The victim sustained a traumatic brain injury with skull damage. He has ongoing memory problems and suffers a degree of cognitive impairment. The speed at which he is able to process information has reduced and he suffers from cognitive fatigue. He sustained lacerations and bruising to his head. His head injuries have left an obvious contour defect. Further physical injuries included fractures to his ribs and spine. He also sustained a pneumothorax of the lung.
Apart from these injuries, the impact of the offending on the victim and his family was pervasive. The victim has ongoing feelings of fear for his personal safety. His capacity to work as a hairdresser has been compromised. He is easily tired in the course of completing day-to-day tasks as a result of the brain injury which he sustained. He now lives with his sister, who assists him with day-to-day tasks.
Burner has extensive criminal antecedents. In 2006, when a young offender, he committed the offence of assault occasioning actual bodily harm. He committed a further offence of aggravated assault without a weapon against a police officer in 2012. His other antecedents included offences of dishonesty, drug offending, road traffic offending and failure to comply with bail agreements. These antecedents, in particular the offences of assault, preclude the leniency that may otherwise be afforded to a first offender.
At the time of sentencing, Burner was aged 39 years. He spent his early years in rural Australia. When aged 10 years, his parents separated. His mother’s new partner was an aggressive alcoholic who physically assaulted him. He had a limited education, spending only two years at high school, leaving at the age of 14 years. He left home when aged 17 years and travelled interstate. He later returned to South Australia. He has a poor employment history, particularly following the development of a dependence on methylamphetamine. According to a psychological report, the defendant has a behaviour pattern of irritability, argumentativeness and reduced impulse control while drug dependant. He was described by the psychologist as having a stimulant use disorder and his prospects of rehabilitation were dependent upon counselling and the avoidance of further substance abuse.
The Application for Permission to Appeal
The Director may appeal against a sentence passed on a person convicted on Information with the permission of the Full Court.[4] Permission to appeal should only be grated in rare and exceptional cases.[5]
[4] Criminal Law Consolidation Act 1935 (SA) section 352.
[5] Everett v The Queen (1994) 181 CLR 295, 299-300.
The principles regarding applications by the Director for permission to appeal against sentence are settled. The Director will be granted permission to appeal if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual Judges as to particular crimes or types of crimes to be corrected, or if a sentence is so far below the appropriate range of sentences that it reflects an error of principle or would shock the public conscience. If the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant permission to appeal even though no general point of principle will be established by the case.[6] Further, an error must be identified before a sentence may be interfered with.[7] Such error may be inferred from a result that is manifestly unreasonable or plainly wrong. However, a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[8]
[6]    R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168, 172.
[7]    Dinsdale v The Queen (2000) 202 CLR 321, 339-40 (Kirby J):
… As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts. [Footnote omitted.]
[8]    Dinsdale v The Queen (2000) 202 CLR 321, 339-40. See also R v Marikar [2010] SASCFC 36.
Once the court has determined that it is appropriate to grant leave, the court is to proceed without any further regard to the principle of double jeopardy and to impose a sentence that it considers appropriate having regard to the circumstances of the offending and the antecedents of the offender. As this Court observed in Harkin:[9]
Section 340 [of the Criminal Law Consolidation Act] precludes the Court from having regard to the “rule of law”, known as double jeopardy when resentencing. The words “Despite any other rule of law” should be presumed to have some work to do and should be given some meaning and effect.[10] In our view, the effect of section 340 is to remove from consideration any rule of law enabling a Court to impose, when resentencing, a sentence other than the sentence which the Court thinks ought to have been imposed at first instance.
If sections 340 and 353(4)(a)(i) are read together, and given that it is to be presumed that section 340 has some work to do, that work, in our view, is to remove the Court’s ability to temper a sentence in recognition of the element of double jeopardy involved in twice standing for sentence.
[9] R v Harkin (2011) 109 SASR 334, 343.
[10] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
Manifestly Inadequate
On the hearing of the application, counsel for the Director pointed out that the maximum penalty for the offence of aggravated causing serious harm with intent is imprisonment for 25 years. It was accepted that sentences turn on the facts of each case. However, counsel drew attention to previous decisions of this Court which had imposed significantly higher sentences for assaults resulting in brain injuries.[11] It was submitted that general and personal deterrence must predominate for offences of assault committed in relation to debt recovery.[12] It was further submitted that a severe penalty is warranted for assaults which are protracted, cause serious harm and involve an intention to inflict serious harm and the use of weapons.
[11] See R v Koch [2015] SASCFC 31; R v Campbell [2012] SASCFC 44.
[12] R v Perdikoyiannis, Condo and Peabody [2011] SASCFC 82.
Counsel for Burner accepted that the sentence was low, however, it was submitted that the sentence was within the appropriate range.
In my view, the sentence imposed was manifestly inadequate. Burner’s offending was very serious, leaving his victim with long-term disabilities. The victim’s earning capacity has been materially impacted, as has his ability to be fully independent in everyday living. As earlier noted, the offending was aggravated by being undertaken in the company of another and by the use of weapons. I consider that a notional head sentence in the range of eight to ten years is appropriate for Burner’s offending.
I consider the sentence imposed to be so low as to be a wholly inadequate to address the defendant’s offending. I consider that the Director should be granted leave to appeal and that this Court should allow the appeal and resentence the defendant.
There is a substantial body of evidence indicating that Burner has accepted full responsibility for his part in the offending. It is clear that he suffers remorse, has empathy for the victim and is contrite. He has fully co-operated with the authorities. He entered his plea of guilty before the matter was listed for trial. Although he has poor criminal antecedents, he has not on any earlier occasion served a sentence of immediate imprisonment, although he has had the benefit of suspended terms of imprisonment. Having regard to all of the circumstances, subject to one matter discussed below, I would impose a head sentence of four years and six months’ imprisonment. I would fix a non-parole period of two years and three months.
Following his arrest, Burner spent three months and three weeks in custody and was then released on home detention bail for a period of two years and four months. In Franceschini,[13] this Court considered that there was no power to backdate a sentence to reflect time spent on home detention bail – whatever credit was to be given should be made against the head sentence to be imposed. In this matter, I would make an allowance of four months on this account and, as a result, the head sentence should be reduced from four years and six months to four years and two months. I would reduce the non-parole period to two years and one month. Further, that sentence should commence three months and three weeks prior to the defendant being taken into custody when sentenced. Accordingly, the sentence of four years and two months imprisonment should take effect from 7 January 2015.
[13] R vFranceschini [2015] SASCFC 116.
Conclusion
I would grant permission to appeal and allow the appeal. I would resentence the defendant to a term of four years and two months’ imprisonment. I would fix a non-parole period of two years and one month. The sentence should be taken to have commenced on 7 January 2015.
KELLY J: I agree with the orders proposed by Gray ACJ and with his reasons.
DAVID AJ: I would allow the appeal for the reasons given by Gray ACJ and agree with the orders he proposes.