R v Carr - [2008] SASC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CARR
[2008] SASC 125
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Anderson)
13 May 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING
Appeal against sentence imposed by District Court - appellant originally charged with nine offences - pleaded guilty to two counts of common assault and one count of threaten life - nolle prosequi entered on remaining six counts - sentenced to 2 years and 5 months imprisonment with non-parole period of 12 months - whether sentence manifestly excessive - whether proper allowance was made for previous periods in custody and on home detention bail - whether an error made in consideration of appellant's prospects for rehabilitation - whether sentencing judge erred in failing to suspend the sentence.
Held: Appeal allowed - reduction in both head sentence and non-parole period - no suspension of sentence.
Criminal Law Consolidation Act 1935 (SA) s 19(1) and s 39; Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(ed), s 10(1)(o), s 18A and s 30(2)(a), referred to.
R v Malesevic (1999) 204 LSJS 32; R v Allen [1999] SASC 346; R v Nguyen [2004] SASC 405; R v Parisi (2003) 86 SASR 183, discussed.
R v Hamid (2006) 164 A Crim R 179; Papastamatis v Police (2003) 85 SASR 241; Mitchell v Police (2007) 99 SASR 296; R v Morse (1975) 23 SASR 98, considered.

R v CARR
[2008] SASC 125
Court of Criminal Appeal: Doyle CJ, Bleby and Anderson JJ

DOYLE CJ. I agree with the orders proposed by Anderson J and with his reasons. There is nothing that I wish to add.
BLEBY J. I also agree with the orders proposed by Anderson J and with his reasons.
ANDERSON J:
Introduction
This is an appeal against a sentence imposed by a judge in the District Court. The appellant was originally charged with nine offences and when the appellant pleaded guilty to three of those offences the prosecution entered a nolle prosequi on the remaining six counts.
The three offences to which the appellant pleaded guilty were two counts of common assault contrary to s 39 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) and one count of threatening life contrary to s 19(1) of the Act.
After the judge made a reduction for the pleas of guilty and remorse, the appellant was sentenced to two years and five months imprisonment with a non-parole period of twelve months. The judge imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”).
The two issues to be decided in this matter are whether the sentence is manifestly excessive having regard to what the appellant submits are errors in the sentencing approach, and whether the sentence should have been suspended.
Background
The appellant and the victim had lived together for about 23 years. They were married in 1990. It was agreed by the defence and the prosecution that the sentencing should take place against a background of other incidents in the relationship between the appellant and the victim in which the appellant had abused the victim over a period of years.
I will use the words of the sentencing judge in describing the incidents which led to the charges to which the appellant pleaded guilty.
The first count of common assault, that is count 2 on the Information, occurred in 1993 at Ms Carr’s sister’s house at Happy Valley. Ms Carr stated that you had been drinking. After having a family discussion about property matters at the house, Ms Carr’s sister asked if you and your wife wanted to stay for coffee. You stated that you wanted to go. Ms Carr stated that she wanted to stay for coffee. You then slapped Ms Carr across the face. Ms Carr described your actions as a hard slap across the face, which caused her to stagger as it occurred. Ms Carr’s sister then told you to get out, walking you to the front door, and would not let Ms Carr return home with you. You left and Ms Carr stayed with her sister for that night before returning home the following day. Ms Carr stated that you were remorseful about your actions and later apologised to her and her family for your assault upon her.
The second count of common assault, that is count 3 on the Information, occurred in February, 2005 when you were watching television with Ms Carr at your home. Ms Carr commented on a television programme you were watching. She told you how disgusting she found it when an actor spat on another in the television programme. Later in the evening you spat in a manner that Ms Carr describes as “full on” in her face. You then went to bed.
The final count of threatening life, that is count 5 on the Information, occurred in March, 2006 at your home at Nairne. You told Ms Carr to leave and get out of the house. Ms Carr responded by telling you that in order to do that she would need to find somewhere for her and your son David to live. You replied by saying that David was to stay with you and that Ms Carr could not take David anywhere. Ms Carr responded with the phrase “Over my dead body”. You then went into the kitchen, took the carving knife out of the knife block, returned to the family room and held the knife to Ms Carr’s throat whilst threatening, “Well, that can be arranged”. Your son David was watching whilst this was occurring. Your son was hysterical and screaming at you “Stop it, stop it”. Your son stood up from sitting on the lounge suite, and ran to the front door. When you heard the door open you then took the knife away from Ms Carr’s throat. Ms Carr chased after David who was standing in the middle of the front lawn. She picked him up and took him to the back of the house and sat in the garden with him. You went back into the study and did not talk about what happened. Ms Carr states that David would often talk about this incident, ask her questions about why you did this, and was concerned that you were going to kill his mother.
The sentencing judge described the threat to kill as reckless indifference or a “couldn’t care less” attitude as to whether she feared that the threat would be carried out. His Honour indicated however that he accepted that the appellant had no intention of actually hurting the victim.
As previously mentioned, the agreed basis upon which the appellant was sentenced was against the background of a relationship which included episodes of abuse over a long period of time. It was agreed that the appellant should be sentenced on the basis that the three counts to which the appellant pleaded guilty were not isolated incidents. The abuse included both emotional and physical abuse.
In her victim impact statement the victim described the relationship over the period of 23 years. She said that she had been bruised, choked and had her life threatened as well as being verbally abused, manipulated, blackmailed, belittled and degraded. She said that she was terrified when threatened with the knife and says that she also recalls the look on her son’s face as he was present during that incident. He was aged eight years at that time. Section 10(1)(ed) of the Sentencing Act was not law at the time of this offence. However, regard to the fact that the young child was present at the time of the offending is a relevant matter under s 10(1)(o).
The victim further described her difficulties since leaving the relationship. These included finding somewhere safe to live and having to deal with Centrelink as a means of survival. She described the legal process involving the statements she had given to the police and the resulting proofing by the Director of Public Prosecutions as traumatising.
Submissions of the parties
Mr Edwardson QC for the appellant raised two matters in relation to the sentence which was imposed. These were the time spent in custody and on home detention and the second was the prospect of rehabilitation. As to the first matter, the judge had not specifically indicated that these matters had been taken into account although both were mentioned in the sentencing remarks. The time spent in custody was twenty days, whilst the period on home detention was some twenty months. Whilst the applicant was on home detention he was subjected to random breath analysis and urine analysis as well as the normal checks carried out by Corrections officers. He complied with all of the conditions of his home detention bail.
When the amended grounds of appeal were provided, following the leave to appeal application, the sentencing judge wrote a report to the criminal appeals co-ordinator indicating that the two matters mentioned, namely time in custody and on home detention, were taken into account by him and that he did not have any set practice of mentioning them in his sentencing remarks. He said in his report that if he believed that one or both were particularly significant, then they would be specifically mentioned, otherwise they are taken into account in arriving at what he regarded as the appropriate sentence.
As I have indicated earlier, the appellant had been initially charged with very serious offences. These were of a sexual nature including two counts of rape and one of indecent assault. Those matters were obviously relevant when bail was initially refused. Mr Edwardson argued that in the circumstances of the charges being withdrawn and the nolle prosequi entered, the sentencing judge should have had regard to both the time in custody and the time on home detention release, and that they should have been referred to in the sentencing process. His point was that had it not been for the more serious charge, the appellant would likely have been given ordinary bail and not home detention. Furthermore, he argued that the longer restrictions are in force for offences which are not prosecuted, the more material the period of home detention becomes in the sentencing process.
Mr Edwardson referred to the decision of R v Malesevic (1999) 204 LSJS 32. He also referred to R v Allen [1999] SASC 346, and R v Nguyen [2004] SASC 405. Finally Mr Edwardson referred to R v Parisi (2003) 86 SASR 183. The cases demonstrate that regard may be had to time spent in custody pursuant to s 30(2)(a) of the Sentencing Act. It is a matter of discretion as to whether any credit is given for time spent on home detention bail. However time spent on home detention bail can be a relevant factor where the original bail conditions were more stringent than they otherwise would have been because of the nature of the charges.
The appellant was arrested and charged with all counts on 12 May 2006. He did not apply for bail when he first appeared before a magistrate on 15 May 2006. On 31 May 2006 he applied for bail, and he was granted bail on 1 June 2006. This was home detention bail on the usual conditions of wearing an electronic wristlet and abstaining from alcohol. Alcohol had to be removed from the premises of the appellant as a condition of bail.
On 27 January 2006 the bail was varied to allow the appellant to leave the premises for remunerated employment, including visiting other businesses in the course of his employment. On 25 August 2006 the information was amended and fresh declarations delivered.
On 6 October 2006 the appellant was committed for trial in the District Court. He was arraigned and pleaded not guilty to all nine counts. The matter was listed for trial on 26 November 2006 and he was re-arraigned on the three counts to which he pleaded guilty.
Mr Edwardson emphasised the long period on home detention in this case. He submitted that the initial restrictions of the home detention bail conditions were as a result of the charges which were not ultimately prosecuted. He submitted that the sentencing judge erred in saying nothing in his sentencing remarks which allowed this court to determine to what extent that period of home detention was taken into account.
Mr Edwardson submitted that the offences, to which the appellant pleaded guilty, did not result in physical injury to the victim. In particular in relation to the incident with the knife he described it as “an impulsive action against the background of him having consumed a lot of alcohol”. He submitted that the appellant’s offending was triggered by his excessive consumption of alcohol.
Mr Hinton QC for the Director of Public Prosecutions submitted that it was not an error in failing to identify the discount made for time spent in custody and on home detention. He submitted that the judge acted appropriately within his discretion. He pointed to the fact that it was after mentioning the time in custody and home detention that the judge discounted by 20 per cent for the guilty plea and remorse. If the effect of his submissions is that, somehow or other, the judge must have taken these factors into account before arriving at his discount of 20 per cent, I do not agree. The judge said the discount was for the guilty pleas and remorse.
Prospects of rehabilitation
The second matter raised by Mr Edwardson was that the judge’s assessment of the appellant’s prospects of rehabilitation was not in accordance with the information placed before the judge. The judge described the chances of rehabilitation as “only moderate”. The matters stressed in relation to the prospects of rehabilitation in this case were the guilty pleas, the appellant’s good working background, the fact that the offending was part of a problem with alcohol abuse, the fact that the appellant was 50 years of age, that he had been described by the Corrections officer as a model client during his period of home detention, and that he had already rehabilitated himself in relation to his alcohol abuse. He had no previous convictions.
Mr Hinton submitted that it was open on the material placed before the court to describe the prospects of rehabilitation as only moderate.
Sentence viewed overall
Mr Hinton approached the matter on the basis that the appellant had what he described as an insurmountable hurdle based on the facts. That is, the charges to which the appellant pleaded guilty, had to be looked at against the background of domestic abuse over at least the period of the 17 year marriage.
Mr Hinton spent some time in examining sentencing generally in cases of domestic violence. Mr Hinton provided to the court some statistical information produced in November 2001 from the Office of Crime Statistics. This was the most recent information available. Mr Hinton submitted that those statistics showed that offending in cases of domestic violence is prevalent in the community. He therefore submitted that general deterrence is of paramount importance in sentencing for offences of that nature. Mr Hinton referred to R v Hamid (2006) 164 A Crim R 179. This was a decision of the Court of Criminal Appeal in New South Wales. He referred particularly to the reasons of Johnson J where Her Honour embarked upon an analysis of the decisions in New South Wales involving domestic violence.
After setting out the judicial statements from a number of decisions, Her Honour said at [77]:
These judicial statements are complemented by criminological research concerning domestic violence. An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control: J Stubbs, “Restorative Justice, Domestic Violence and Family Violence”, Australian Domestic and Family Violence Clearing House, Issues Paper 9, 2004, pp 6–7.
Mr Hinton referred to Papastamatis v Police (2003) 85 SASR 241 where Duggan J observed at [32] “the element of deterrence both personal and general, is of particular importance in such cases”. Bleby J in Mitchell v Police (2007) 99 SASR 296 observed at [11] “the other relevant and important feature of the case was that this was not an isolated incident. It was committed against a background of ongoing domestic violence. The offending was therefore not out of character or an isolated or one-off incident.”
As Mr Hinton submitted, the offences are difficult to detect, involve recurrent conduct, and can cause extensive harm beyond the immediate relationship of those involved.
It was Mr Hinton’s overall submission that no error of principle was identified in the remarks of the sentencing judge. He referred to the maximum penalties of three years imprisonment for common assault and ten years for threatening life. Finally, he submitted the court could only interfere if it was convinced that the sentence was manifestly excessive. He referred to the statement of principle by King CJ in R v Morse (1975) 23 SASC 98 at 99.
The sentencing remarks
The sentencing judge referred to a psychiatric report from Dr Raeside. Dr Raeside concluded that the appellant suffered from an adjustment disorder with mixed anxiety and depressed mood. In the period leading up to these offences Dr Raeside reports that the appellant told him he was drinking around three 4-litre casks of wine a week. He had been abusing alcohol since an early age. His Honour dealt appropriately with the need for both specific and general deterrence. The question of specific deterrence in this case is probably now of less importance than it was because the appellant and victim are no longer living together in a relationship. The question of general deterrence is of great importance for offences of this type.
Prospects of rehabilitation
It is my view that the judge has erred in describing the prospects of rehabilitation as only moderate. On the whole of the information placed before the judge, an appropriate description is that the prospects of rehabilitation were reasonably good. The appellant had reformed himself during his period of home detention in relation to his excessive consumption of alcohol. He has no previous convictions. He has generally been able to hold down stable employment, and he was described in the home detention report as a model client. He has also been referred to as a person of good character by various members of the community who provided character references.
Given that it is my view that the judge has erred in assessing the prospects of rehabilitation, the appellant would have to be re-sentenced.
Time in custody and on home detention
Whilst the judge has said in his report to the criminal appeals co-ordinator that he did take both the time in custody and the time spent in home detention into account, there is nothing in the sentencing remarks which gives this court any opportunity of assessing how, and to what extent, those matters were taken into account. Although it is a matter of discretion as to whether a judge will take into account time spent in home detention, if a judge does take that into account, then where there is a long period of home detention, as in this case, it is desirable in my view for the judge to give some indication of how that period has been taken into account in arriving at the sentence. This is particularly important where home detention conditions are only likely to have been imposed because of serious charges, which, in the end, are not proceeded with. The difficulty in this case is that it is not possible to tell what the judge’s starting point was, or at what point in the calculation the allowance was made. Whilst it is not necessary in my view to nominate a precise period of time, there should be sufficient transparency in the sentencing process.

In this case the conditions of home detention would not be described as unduly onerous but nevertheless the appellant had to comply with all the conditions of bail and he was able to do so. He was subjected to random testing for drugs and alcohol, wore a bracelet and was subject to venue checks. He did nothing during the period of that home detention contrary to the bail conditions. It was probably for that reason that he was described by the Corrections officer as a model client. It is not clear whether and to what extent the judge reduced the sentence. However the combination of 20 days in custody plus 20 months home detention, together with his assessment of the prospects of rehabilitation, would require an adjustment to be made.
Re-sentencing
It is therefore necessary, because of my earlier remarks, to re-sentence the appellant. The head sentence imposed by the judge was 29 months. This was after a reduction of 20 per cent for the pleas of guilty and remorse. It is not possible to say what the judge’s starting point was. He does not give a starting point but says, in his report, that he took both the time in custody and on home detention into account.
I would use 3 years as my starting point. I agree with the judge that 20% is an appropriate reduction for the guilty pleas and remorse. Allowing for the prospects of rehabilitation and taking into account the time in custody and on home detention, I would sentence the appellant to imprisonment for 24 months. Having particular regard to what I consider to be a reasonably good prospects of rehabilitation, I would fix the non-parole period at 9 months.
Suspension of sentence
It is my view that, even despite this man’s unblemished record, the seriousness of the offending as against the background that the incidents charged were not isolated incidents but formed part of a pattern of conduct over many years, is the crucial factor in deciding whether to suspend the sentence. There must be in cases like this a message of deterrence against domestic violence of this nature. The judge took all of the appropriate matters into account in exercising his discretion as to whether to suspend the sentence but found that there was no good reason to do so and in the end result I agree that the judge was correct. I would not suspend the sentence. The conduct viewed against the agreed background of domestic violence is too serious to justify a suspension.