R v Campbell; R v Fowler - [2017] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CAMPBELL; R v FOWLER
[2017] SASCFC 79
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Stanley)
7 July 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - FAILURE TO EXERCISE DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
The appellants, Campbell and Fowler, appeal against their sentences.
Campbell was charged with aggravated unlawful detention, aggravated assault causing harm and aggravated blackmail. He pleaded guilty on the second day of trial to aggravated assault causing harm in satisfaction of those charges. In sentencing, the starting point adopted by the Judge was three years imprisonment. After discount for the plea of guilty that became two years, eight months and two weeks.
The same three charges were laid against Fowler. On the day trial was to commence she pleaded guilty to aggravated assault causing harm and aggravated blackmail in satisfaction of those charges. The starting point adopted by the Judge in sentencing her was four years and six months imprisonment. After discounts she was sentenced to imprisonment for three years and one month, with a non-parole period of one year and seven months.
During the course of the offending the appellants inflicted violence upon the victim over a considerable period of time as a result of a dispute regarding payment for methylamphetamine.
The appellants were sentenced by the same Judge. On appeal they submit that the sentences are manifestly excessive, that the sentencing Judge failed to have adequate regard to Campbell’s intellectual disability and Fowler’s mental disorders, and that the Judge erred in failing to suspend the sentences. Additionally Fowler submits that the Judge erred in not considering whether her sentence should be served on home detention and also erred in failing to allow the same discount as Campbell for her pleas of guilty.
Held (Vanstone and Kelly JJ) in relation to Campbell: Appeal allowed. The sentence is manifestly excessive having regard to the maximum penalty, the subsidiary role played by Campbell and his intellectual disability. A sentence of one year, 10 months and 21 days is imposed, with a non-parole period of one year.
Held (Vanstone, Kelly and Stanley JJ) in relation to Fowler: The appeal is dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 10C(2)(f), s 18A, s 30, s 33BB; Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA), referred to.
Postiglione v The Queen (1997) 189 CLR 295; Lowe v The Queen (1984) 154 CLR 606; R v Dwyer (2015) 121 SASR 587; R v Lutze (2014) 121 SASR 144; Bugmy v…

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.

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Details

Case: [2017] SASCFC 79
Decision Date: 7 July 2017

CaseChat Overview and Summary

The case of *R v Campbell; R v Fowler* concerned appeals against sentences imposed by a sentencing judge. Campbell appealed his sentence for aggravated assault causing harm, while Fowler appealed his sentence for aggravated assault causing harm and aggravated blackmail. The appeals were heard by Vanstone, Kelly, and Stanley JJ of the Supreme Court of South Australia, Court of Criminal Appeal.

The primary legal issues before the court were whether the sentencing judge erred in fixing the starting point for Campbell's sentence, and whether there was an unjustifiable disparity between the sentences imposed on Campbell and Fowler, particularly given Fowler's conviction for the more serious offence of aggravated blackmail. The court also considered the application of principles regarding the exercise of sentencing discretion and the parity between sentences of co-offenders.

The court reasoned that while a two-stage enquiry is required for certain sentencing orders, the sequence of addressing factors is not rigid. However, in Campbell's case, the court found the starting point of three years imprisonment for aggravated assault causing harm to be too high, especially considering his intellectual disability and the finding that Fowler initiated the assault. The court noted that Campbell's intellectual disability diminished the importance of deterrence and affected his culpability. Furthermore, the court observed a potential disparity in sentencing between Campbell and Fowler, given that Fowler received a sentence for both aggravated assault and aggravated blackmail, with the maximum penalty for blackmail being significantly higher. Despite the sentencing judge's error in arithmetic calculation for Fowler's sentence, the court determined that an independent exercise of discretion would likely result in the same sentence for Fowler.

In conclusion, the court granted Campbell permission to appeal, allowed his appeal, and set aside his sentence. Campbell was resentenced to two years and four weeks imprisonment, with a non-parole period of one year and two weeks. Permission to appeal was refused for Fowler, and his sentence was upheld.

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

VANSTONE AND KELLY JJ STANLEY J

As the sentence I consider appropriate is the same sentence imposed by the sentencing judge, I am not required to resentence in accordance with the principle in Kentwell. Conclusion In relation to Campbell, I would grant permission to appeal and allow the appeal and set aside the sentence imposed. I would resentence the appellant to a term of imprisonment of two years and four weeks. I would fix a non-parole period of one year and two weeks. The sentence and the non-parole period are to commence on 20 September 2016. In relation to Fowler, I would refuse permission to appeal on those grounds in respect of which permission was sought. As I have indicated, I accept that the sentencing judge erred in the arithmetic calculation to reducing the notional head sentence for the pleas of guilty. However, as I consider that the Court would nonetheless resentence Fowler to the same sentence imposed by the sentencing judge in the independent exercise of the sentencing discretion, the appropriate order is that the appeal be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE AND KELLY JJ, STANLEY J

In R v Hosking[22] Vanstone J, with whom Parker J agreed, held that the requirement for a two-stage enquiry did not require a particular sequence from which the relevant factors are to be addressed. The two-stage process involves consideration of separate matters and each must be addressed before a home detention order is made. However, cases will arise where the making of a home detention order will be quite out of the question without reference to the suitability of the defendant for such an order. That might be because of the necessity for general and personal deterrence, protection of the public or punishment. Where such a finding is appropriately made it is not necessary also to consider the suitability of the defendant for home detention. Consideration[22] [2017] SASCFC 50.Campbell Campbell submits that the starting point of three years is too high, both in itself and when considered against the starting point of the sentence for Fowler who had to be sentenced not only for the offence of aggravated assault case harm, but also for the offence of aggravated blackmail. The maximum penalty for aggravated assault cause harm is imprisonment for five years where an offensive weapon is involved. The maximum penalty for the offence of aggravated blackmail is imprisonment for 20 years. The sentencing judge’s starting point for sentencing the co-accused was merely 18 months greater than the three-year starting point for Campbell’s sentence for one count of aggravated assault causing harm. Given the substantially greater maximum penalty and the seriousness of the offence of blackmail, it is possible that the judge, in fixing a single penalty pursuant to s 18A of the Sentencing Act for the co-accused’s offending might have attributed more than 18 months of the single term of imprisonment imposed to the aggravated blackmail offence. It is to be expected that in fixing a single sentence for both offences the more serious offence, measured by the maximum penalties, would form a greater proportion of the overall sentence. That suggests a degree of disparity between the sentences of the appellant on the one hand and the co-accused on the other,[23] particularly given the judge’s finding that it was Fowler rather than Campbell who initiated the assault, which would give rise to a justifiable sense of grievance on the part of Campbell.[24] [23] Postiglione v The Queen (1997) 189 CLR 295 at 301.[24] Lowe v The Queen (1984) 154 CLR 606 at 613. In any event, notwithstanding the seriousness of the offending, I consider the starting point of three years, when the maximum penalty is five years, is too high given the mitigating factor of his intellectual disability and the judge’s finding that the aggravated assault cause harm was initiated by Fowler rather than Campbell. His intellectual disability diminishes the importance that deterrence would otherwise assume in sentencing for this offence. Further, his intellectual disability is also a factor to be weighed in assessing his culpability for the offending. He did not initiate the assault. His impulsivity meant he had a reduced capacity to appreciate the wrongfulness of his conduct in joining in the assault initiated by Fowler. These are considerations relevant to the retributive and punitive aspects of sentencing.