R v Clery - [2014] SASCFC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLERY
[2014] SASCFC 63
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)
12 June 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - AFFRAY, RIOT, UNLAWFUL ASSEMBLY AND LIKE OFFENCES - AFFRAY
Appeal against sentence. The defendant was convicted following a trial by jury of the offence of affray. The defendant also stood to be sentenced for the offences of driving while disqualified and driving without due care. The offence of affray occurred in breach of a bond to be of good behaviour imposed following the driving offences. The defendant was sentenced to the one term of imprisonment of 18 months with respect to the offences of affray and driving disqualified. A non-parole period of eight months was fixed. No penalty was imposed for the offence of driving without due care.
Whether the sentence imposed was manifestly excessive. Whether the Judge failed to have adequate regard to, and accord adequate weight to, matters raised in mitigation of penalty. Whether the Judge erred in failing to suspend the sentence of imprisonment.
Held per Gray J (Peek and Nicholson JJ agreeing) dismissing the appeal:
1. In light of the seriousness of the offences, the leniency which had been extended to the defendant in the past and the lack of any contrition in relation to the offending conduct, the sentence imposed by the Judge was within his sentencing discretion.
2. The matters personal to the defendant were given appropriate weight in the fixing of a merciful non-parole period.
Wood v Samuels (1974) 8 SASR 465; R v Alzuain [2013] SASCFC 45; Hamnett v The Police [2000] SASC 126; R v McInerney (1986) 42 SASR 111; R v McNamara (2009) 105 SASR 38, considered.

R v CLERY
[2014] SASCFC 63
Court of Criminal Appeal: Gray, Peek and Nicholson JJ
GRAY J.

This is an appeal against sentence.
Introduction
The defendant and appellant, Eamon Colin Clery, was convicted of the offence of affray following a trial by jury in the District Court. That offence carries a maximum period of imprisonment of three years.
The defendant also stood to be sentenced for the offences of driving while disqualified and driving without due care. A bond had been previously imposed for these offences, a condition of which was to return for re-sentence if the conditions of the bond were breached. The commission of the affray offence breached the bond to be of good behaviour. The offence of driving while disqualified carries a maximum penalty of six months’ imprisonment.
The defendant was sentenced to the one term of imprisonment of 18 months with a non-parole period of eight months for the offences of affray and driving while disqualified. No penalty was imposed for the…

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

AGLC: R v Clery [2014] SASCFC 63
Case: [2014] SASCFC 63
Decision Date: 12 June 2014

CaseChat Overview and Summary

This matter concerned an appeal against sentence by the defendant, R v Clery, before the Full Court of the Supreme Court of South Australia, comprising Gray, Peek and Nicholson JJ. The appeal arose from the defendant's conviction for affray and driving while disqualified.

The court was required to determine whether the sentencing judge had erred in imposing a sentence of 18 months imprisonment with a non-parole period of eight months. This involved considering the seriousness of the affray offence, the defendant's conduct in committing the driving while disqualified offence, and the defendant's overall prospects of rehabilitation.

The court reasoned that the affray offence was serious, involving an unprovoked attack on vulnerable individuals and contributing to a public disorder. The absence of a weapon was not considered a mitigating factor as it would have elevated the charge to an aggravated offence. The driving while disqualified offence was deemed contumacious, demonstrating a deliberate disregard for the court's order, particularly given its commission shortly before a court appearance for similar offences and while on bail for the affray. The court also noted that the defendant's continued offending while on bail weighed against any conclusion of rehabilitation. The fact that the defendant was subject to an obligation to be of good behaviour at the time of the affray was considered an aggravating feature.

Ultimately, the court concluded that the sentence imposed was within the sentencing judge's discretion, taking into account the seriousness of the offences, the leniency previously extended, and the lack of contrition. The appeal was dismissed.

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

GRAY J PEEK J (dissent) NICHOLSON J (dissent)

In light of the seriousness of the offences, the leniency which had been extended to the defendant in the past and the lack of any contrition in relation to the offending conduct, the sentence imposed by the Judge was within his sentencing discretion. The matters personal to the defendant were given appropriate weight in the fixing of a merciful non-parole period. Conclusion I do not consider that any sentencing error has been demonstrated. Further, I consider that the sentence imposed of imprisonment of 18 months with a non-parole period of eight months was within the Judge’s sentencing discretion. I would dismiss the appeal. I would dismiss the appeal. I agree with the reasons of Gray J. I agree that the appeal should be dismissed for the reasons given by Gray J.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J,

In the present proceeding it is relevant to note that it is an aggravating feature of offending that it was committed while subject to an obligation to be of good behaviour.Consideration The defendant’s offending was serious. It involved an attack which was entirely unprovoked and targeted a vulnerable group of young people doing nothing more than walking along a suburban street. The defendant’s intimidatory behaviour and proprietorial attitude to the street began a series of events which culminated in the commission of the affray. Although the defendant did not initiate the violence, he joined in by striking a 17 year old female victim and then her mother when she attempted to intervene to protect her daughter. He threatened the mother that “things would get worse” when she sought to diffuse the situation by indicating that she was going to seek police assistance. The offence of affray has no tariff.[2] This is unsurprising given the range of circumstances in which the offence may be committed. It cannot, in my view, be said that the affray and the defendant’s part in it were at the lower end of the scale of seriousness. Affray is an offence against public order and general deterrence is an important consideration in determining an appropriate sentence.[2] R v Alzuain [2013] SASCFC 45, [25]. As noted above, the defendant contended that the fact that he did not use a weapon is a factor relevant in mitigation. Had the defendant been armed with a weapon he would have been liable to conviction of an aggravated offence. In this circumstance, the absence of a weapon could not be properly viewed as mitigatory. The offence of driving while disqualified was committed in the course of the defendant driving home from work. The circumstances of the commission of the offence and the fact that the defendant had been detected on three prior occasions for the same conduct suggests a conclusion that the offending was contumacious, namely, a deliberate disregard of the order of disqualification. The relevant conduct was committed two days before the defendant was due to appear in court in relation to three other similar offences. The commission of those prior offences was a matter of aggravation in respect of the offence for which the defendant was to be sentenced.[3] [3] Hamnett v The Police [2000] SASC 126, [21]. In assessing the defendant’s prospects of rehabilitation the Judge was entitled to have regard to the offences which post dated the commission of the offences before the court.[4] The defendant’s continued disobedience of the law at a time when he was on bail for the affray offence tends against any conclusion that the passage of time since the offence had secured at least the start of his rehabilitation. [4] R v McInerney (1986) 42 SASR 111. Notwithstanding that the defendant had not been convicted of offences of violence in the past, he was not entitled to the leniency that would be appropriately extended to a person of previous good character. Good character is not divisible.[5] An absence of prior offences of violence would of course tend against a conclusion that he was a person from whom the community needed protection, or that the risk of him committing further offences of violence was great. It is particularly relevant in this regard that the affray offence was committed while subject to an undertaking to the Court to be of good behaviour.[5] R v McNamara (2009) 105 SASR 38, [31].