R v Buzzacott - [2010] SASC 298

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BUZZACOTT
[2010] SASC 298
Reasons for Decision of The Honourable Justice Vanstone
19 October 2010
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
Prisoner pleaded guilty to manslaughter - dispute as to factual basis for sentence - question of burden and standard of proof in respect of disputed matters.
Held: prosecution has not proved that prisoner inflicted the fatal wound.
Criminal Law Consolidation Act 1935 (SA) s 11, s 13, s 285B, referred to.
R v Storey [1998] 1 VR 359; R v Calabria (1982) 31 SASR 423, discussed.
R v Olbrich (1999) 199 CLR 270, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"primary fact"

R v BUZZACOTT
[2010] SASC 298
Criminal
Reasons for decision on dispute as to facts of offence

VANSTONE J: The prisoner was charged with murder.
The particulars were that on the second day of October 2009 at Port Augusta, he murdered Alvin Clayton Austin.
On 5 October 2010, being the day of the empanelment of the jury who would hear the trial of the charge, he pleaded guilty to manslaughter. After some consideration, counsel for the Director of Public Prosecutions accepted that plea in satisfaction of the information pursuant to s 285B Criminal Law Consolidation Act 1935. That acceptance operated to acquit the prisoner of the murder charge and he was convicted for manslaughter. The jury was then discharged.
What then followed was a dispute as to the factual circumstances of the offence.
The prosecution had only one eye-witness to the incident in which the victim was fatally stabbed. That was Jason Austin. In his statement he claimed that he had seen the prisoner stab the victim to the neck. There was no evidence of a circumstantial nature to support that the prisoner was the person who performed the act of stabbing.
The nature of the dispute, as foreshadowed by counsel, went to the identity of the person who had stabbed the victim. The prisoner’s position was that although part of a joint enterprise to take part in a fight with the witness Jason Austin and the victim, he did not at any time wield a knife. His plea of guilty was entered on the basis that he was part of a joint enterprise to commit an unlawful and dangerous act, namely to take part in such a fight.
For its part, the prosecution contended that the sentence should be imposed on the basis of the facts disclosed by the statements.
Ms E Telfer, for the prosecution, was content to call evidence first. (I doubt that the prosecution was obliged to commence.) Apart from the evidence of Mr Jason Austin, she tendered a number of statements and photographs and a number of admissions or agreed facts were provided to me. Mr A English, for the prisoner, then called the prisoner.
In making submissions about the approach I should take to the evidence, both counsel agreed that the burden of proving that the prisoner was a principal in the first degree lay on the prosecution. Both counsel referred to R v Olbrich (1999) 199 CLR 270. Both counsel put the submission that proof that the prisoner wielded the knife amounted to a circumstance of aggravation and was a matter which the prosecution had to prove. I queried with both counsel whether such a fact should be classified as a circumstance of aggravation. Certainly, Ms Telfer was not suggesting that proof that the prisoner was the person who stabbed the victim would lead to a sentence greater than the admissions involved in the plea of guilty and the objective and uncontested facts. An alternative classification of the submission being put by Mr English was that he was suggesting that the prisoner should receive a lesser sentence because he was not directly responsible for the fatal stab wound.
The dispute in the matter before me has some parallel with that considered by the High Court in Olbrich. He had pleaded guilty to one count of importing a prohibited import to which s 233B of the Customs Act 1901 (Cth) applied. The prohibited substance was heroin. It was secreted in the defendant’s luggage.
In an affidavit submitted to the sentencing judge the defendant claimed that he was involved in the activity only as a courier. He was cross-examined. The sentencing judge was not persuaded by any of his evidence. The judge sentenced him on the basis of the objective facts disclosed in the material. As to the defendant’s evidence, the judge took the view that, having disbelieved it, he should ignore the fact that it had been given.
In the Court of Criminal Appeal it was accepted that the judge had erred in his approach to the matter. It was held that the prosecution was, in the circumstances, obliged to prove beyond reasonable doubt that the defendant was not a “mere courier”.
The High Court (Gleeson CJ, Gaudron, Hayne, and Callinan JJ; Kirby J dissenting) held that the identification of the precise nature of the defendant’s role was not an essential aspect of the sentencing process: [13]. The Court noted that there was some precision about the defendant’s role inasmuch as it was known that he personally had brought the drugs into Australia: [15]. It was noted that there was no evidence to suggest that the defendant was acting as part of a hierarchy, apart from the defendant’s own assertion: [20].
The Court rejected a submission to the effect that despite having disbelieved the defendant’s evidence, the judge was still obliged to sentence the respondent as a courier because the prosecution had not proved beyond reasonable doubt that the respondent was not a courier: [23]. The approach of the sentencing judge was held to be correct. Since the prosecution was not asserting that the sentence should be increased beyond what the objective facts called for “because the appellation ‘principal’ could be attached to him”, it was the defendant who bore the onus of proving what he asserted.
The majority judgment adopted at [27] a statement of principle from R v Storey [1998] 1 VR 359 at 369 per Winneke P, Brooking and Hayne JJA and Southwell A-JA to the effect that a sentencing judge:
… may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
It may be noted that, critical to this approach, is the characterisation of the disputed facts, that is whether they are seen as adverse to the interests of the prisoner of whether they go in his favour.
Justice Kirby dissented in the result of the appeal, but the principle as framed by him was, in my view, very similar. He said, at [55]:
Specifically, the prisoner is not required to disprove circumstances which the Crown asserts (or from which the Court might infer a conclusion) that the case is an aggravated one warranting more serious punishment than would be appropriate if nothing else were known about the offence of which the accused had been convicted except the fact of conviction and the legal ingredients of the offence.
As can be seen, like the majority, Kirby J placed emphasis on whether the prosecution was pressing for a sentence higher than usual on the basis of circumstances going beyond the legal ingredients of the offence which had been admitted.
The case is not entirely analogous with the present one, because in Olbrich it was known that the defendant himself had brought the prohibited substance into the country. In that sense he was the principal in the first degree. The controversy was over whether he was responsible for the scheme, or only in effect, a foot soldier. Although it is true that here the prosecution has sought to establish quite a basic fact relating to the offence, namely who wielded the knife, it does not claim that the offence is an aggravated one, nor press for any particular sentence on the basis of it.
An older decision of the Court of Criminal Appeal in this state is instructive on this issue. In R v Calabria (1982) 31 SASR 423 the Court was called upon to consider the correctness of a factual basis upon which sentence had been passed. The appellant was charged with trading in Indian hemp. On the relevant date police attended at a farm at Uraidla and there located one thousand Indian hemp plants growing in a large shed. One of the owners, Mr Trimboli, was later arrested for that offence. However, another person was hiding on the property. He sought to make his escape from it by foot. A police officer gave chase and saw the man’s face. The appellant was later arrested at his Pooraka home. Apparently police were led to that address after having ascertained the registered address of a motor vehicle which had been found parked outside the Uraidla shed. The appellant’s clothes had on them traces of vegetation usually found in the Adelaide Hills as well as traces of Indian hemp. Upon his trial the appellant did not give evidence but, in an unsworn statement, denied that he was in the Uraidla area on that afternoon or evening. Plainly the jury rejected that account.
When it came to sentence, his counsel was instructed not to put any submissions in mitigation of penalty. His counsel asked that he be sentenced as a mere gardener. In rejecting that submission King CJ, with whose reasons on this matter White and Matheson JJ agreed, said at 437:
The appellant was proved to have been a participant in an operation of drying out Indian hemp plants in contemplation of sale. He was found, therefore, to have been concerned, at least indirectly, in the buying or selling of Indian hemp and therefore to be guilty of trading within the meaning of the Act. It was for this participation that he had to be punished. The degree of his participation is not known. It was contended that the learned sentencing Judge was required in these circumstances to assume the least degree of involvement, that is that he was at the premises merely as a labourer. To make such an assumption would be to speculate. One could as well speculate that he was a principal in the operation and was using the Trimboli property as the location. Speculation is futile. If the appellant had put forward an explanation of his role in the operation, his Honour would have heard his evidence and have been able to judge its veracity. If he were left in doubt, he would have been required to resolve the doubt in favour of the appellant. In the absence of evidence, however, any assumption as to the degree of the appellant’s participation would be unjustified speculation. He was proved to be a participant in the operation and therefore to be guilty of trading in Indian hemp and he must be punished for that. If the degree of participation were known, it might operate in aggravation or extenuation of the degree of his guilt. As it is not known, it can operate neither as aggravation nor extenuation. This was the approach which the learned sentencing Judge took, and he was correct to do so.
As can be seen from the facts of Calabria as I have set them out, the prosecution had no direct proof of what act or acts were performed by Calabria which constituted trading in Indian hemp. I draw from the statement of King CJ that had Calabria chosen to give evidence about the acts he performed amounting to the offence then the judge would have been obliged to sentence upon that basis unless those matters were disproved by the prosecution beyond reasonable doubt. However, as seen, no evidence was given.
As has been seen, the High Court, following Storey has laid down that the critical distinction between matters which must be proved by the prosecution and matters which must be proved (on the balance of probabilities) by the prisoner is to be drawn between matters of aggravation and matters of mitigation. This principle was expressed in the context of a factual contest over the offender’s role, in the sense of whether he was the principal of the operation, rather than what he actually did.
There is a distinction between a dispute over what might be called the primary facts of the offence, such as I have before me, and a dispute over some other matter which tends to assist in evaluating those facts, such as that in Olbrich. In the case of the former, insofar as the finding of guilt or plea of guilty does not establish those facts, then, if they are disputed they must be proved by the prosecution beyond reasonable doubt. So much seems clear. However, where the dispute centres on a factual matter which cannot be seen as a primary fact, but is still a fact forming part of the circumstances of the offence, the position is less plain. Facts peculiarly within the prisoner’s knowledge might fall within this category. For instance, what of an armed robber who pleads guilty and puts the submission (which is not contradicted on the depositions) that the weapon he carried was not loaded. Is this to be seen as a matter of mitigation? At the other end of the spectrum are facts which relate to the offender’s circumstances, generally of a mitigatory nature, including matters going to the appellant’s motivation in committing the offence, and there, the Olbrich analysis indicates that proof of that matter or fact will lie, on the balance of probabilities, on the offender. These distinctions will not always be easily drawn.
What I have said is sufficient to indicate that, consistent with counsel’s submissions, the matter in issue is one in which the burden of proving the assertion is upon the prosecution.
I am not convinced by any of the evidence given during the facts dispute.
As to the evidence of Jason Austin, I think it is likely to be true.