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.

1. This is an appeal against sentence.

   Introduction

2. 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.

3. 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.

4. 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 offence of driving without due care.  No nominal sentences were identified which would enable the penalty for the offence of driving while disqualified to be distinguished from the penalty for the separate offence of affray.

5. Given the nature of the offending and the defendant’s poor record for offending of the same type, it can be assumed that the penalty for the offence of driving while disqualified was more than a trivial proportion of the overall sentence imposed.  On the appeal, defence counsel suggested that it would not be unreasonable to allocate three months of the 18 months’ imprisonment to the offence of driving while disqualified. 

   The Circumstances of the Offending

6. The trial Judge, when sentencing, summarised the circumstances of and surrounding the affray and carefully delineated the part played by the defendant.  In particular, the Judge remarked:

   The incident took place in Crosby Way, Paralowie, in the early hours of Australia Day 2011. You were all at a party at your house, Clery. You had been brought up in that house. The rest of you, apart from possibly you Hurst, were guests there. I do not know whether you had been drinking or taking drugs.

   At around 1.30 a.m. on 26 January a group of five young people left what I will call the Nitschke house further down the street. They walked to get some food from a take-away shop but the shop was closed and so they walked back.

   As they passed your house, Clery, a group of you was out the front. One of your group, it is not clear who, called out to Jessica calling her a ‘slut’ and telling her to ‘get off the road’.

   She had just turned 17 at the time. She had done nothing at all to justify that abuse.

   She said ‘Excuse me’ and then a group of you, including you four accused, came out onto the street. You, Clery, were saying ‘Get off the street, I own the street’.

   Much later that night after the affray when police went to your house you, Clery, said words to the effect ‘This is my street’.

   I am satisfied that you, Clery, were leading the call to the Nitschke group to get off the street because you were saying that you owned it.

   At first your group just intimidated the Nitschke group. One of the group ran off to the Nitschke house further down the street and got [Jessica’s mother] to come back. Nothing physical happened before she got to the group. [Jessica’s mother] intervened to calm things down. She told you all to go back to your house. She then turned and was escorting her daughter and the others back towards her own house. Nothing physical had happened up until that time, just verbal abuse and intimidation by the group of you.

   As the Nitschke group were walking away in the direction of the Nitschke house you, Pinkerton, ran into the group and started punching Lee White. At that stage you had nothing in your hands. Jessica Nitschke grabbed hold of the back of your singlet and tried to pull you off Lee White, who was her boyfriend. With that you turned around and punched her in the eye. You continued punching her six or seven times. As a result of your punching her in the eye she has lost the peripheral vision in her right eye. Although Clery had begun the intimidation towards the Nitschke group you began the violence.

   I am satisfied that all four of you were then involved in the violence which followed. There was a concerted attack on the Nitschke group. I find that you, Pinkerton, punched Lee White. You also punched Jessica Nitschke and her mother Jennifer Nitschke. You later armed yourself with a small baseball bat and hit Mrs Nitschke on the arm.

   At some stage Mrs Nitschke told a girl called Ebony Byrne to ‘Go home and call the police’. You, Clery, then said to Mrs Nitschke that things were going to get worse because she had called the police.

   Someone chased Ebony Byrne with a baseball bat waving it at her but did not manage to hit her. I’m not sure whether that person with the baseball bat was you, Pinkerton, because I find that there were two baseball bats in your group. I do not sentence you on the basis that it was you who was trying to hit Ebony Byrne.

   Ebony Byrne was the only one of the group of six who was not physically assaulted. She managed to get back to the house and Mr Nitschke called the police. Mr Nitschke was disabled but he did ring the police.

   I find that you, Clery, took swings at Jessica Nitschke. I accept her mother’s evidence that you hit her. When the mother intervened to try and protect Jessica I find that you hit the mother. Either one of you, Hurst, or you, Brown, I am not sure which, also punched Jennifer Nitschke in the eye. A girl called Jade Gridley had her hair pulled such that hair extensions she was wearing came out.

   I find that both you, Brown, and you, Hurst, were either hitting or attempting to hit Jade Gridley. I am not sure which of you actually managed to hit her but one of you did. Jade Gridley’s partner, Sean Warmington, was hit by one of the men with a baseball bat and at about the same time was hit in the back of the head. I am not sure who hit him with the baseball bat or who hit him in the back of the head.

   I have extracted the entirety of the relevant findings as it allows the role that the defendant played to be understood. 

7. The Judge, when imposing sentence, returned to discuss the role of the defendant:

   You, Clery, in my view, started the whole thing. You thought that you owned the street, and you could tell other people to get off it. Once the attack had started and Mrs Nitschke told someone to get the police you warned her that things ‘would get worse’ because she sought to call the police. You were right, things did get worse. You, Hurst, and you, Brown, joined in. It did not matter that you had children in the house. You joined in this affray and joined in the violence. None of you expresses the slightest bit of remorse.

   ...

   I turn to you Clery. I must sentence you for the two driving offences as well as the affray. In respect of the driving without due care, I would have fined you but, in the circumstances, I will impose no penalty. I will impose one prison sentence for the drive disqualified and the affray offence. I impose a head sentence of 18 months imprisonment. I fix a non-parole period of eight months. You too are young, you are working and have been continuously employed. You contribute to the support of your family. You have no antecedents for violence. You have not been to prison before.

   The Appeal

8. The defendant complained that the sentence imposed was manifestly excessive and further complained that the Judge erred by not suspending the sentence of imprisonment. 

   Submissions

9. Counsel for the defendant submitted that the sentence was manifestly excessive, in particular having regard to the nature and objective circumstances of the offending and the maximum penalty for the offence.  Further, it was said that the Judge failed to have adequate regard to, and accord adequate weight to, matters raised in mitigation of penalty.

10. Counsel for the defendant accepted that the offending was unprovoked and a serious example of this type of offence.  However, even allowing for these factors, it was contended that a head sentence of 18 months’ imprisonment was too high and was outside what could properly be regarded as the available range for this offending.  Several aspects of the defendant’s conduct were the subject of particular comment. 

11. It was pointed out that the defendant joined in the violence only after the assault on the victim Jessica by the co-offender Pinkerton and was not responsible for the serious injury caused to her.  It was said that the offending was not aggravated by the use of a weapon and was not premeditated.

12. Attention was drawn to what were said to be mitigatory matters accorded insufficient weight by the Judge.  Those matters were said to include that the offending was out of character, that the defendant had no prior convictions for offences of violence and that his criminal antecedents comprised predominantly driving offences.  It was pointed out that his numerous failures to comply with bail agreements were generally due to a failure to report as required.

13. Counsel for the defendant then drew attention to the defendant’s personal antecedents.  His mother died when he was aged about 18 years.  It was said that his previous aberrant behaviour had occurred at a time when he faced significant difficulties associated with his mother’s death. 

14. Emphasis was placed on his good work history and in particular that he had been in employment since leaving school and was in full time employment at the time of sentencing.  At the time of sentencing, the defendant was in a stable relationship, was the father of three children and took responsibility for contributing to their care.  These matters, it was said, enhanced his prospects for rehabilitation. 

15. Finally, attention was drawn to the defendant’s age, 21 years at the time of offending and 24 years at the time of sentencing, and it was submitted that this was a factor to be taken into account in mitigation.

16. Counsel for the Director submitted that the serious nature of the offending called for an immediate custodial sentence.  It was said that this was particularly so because of the gratuitous violence, entirely unprovoked and targeted toward a vulnerable group of young people doing nothing more than walking on a suburban street.  The Director placed emphasis on the intimidatory behaviour and proprietorial attitude to the street, which began the series of events which culminated in the affray.  Emphasis was also placed on the cowardly attack on the 17 year old victim Jessica as well as the violence inflicted upon her mother when she sought to intervene.  The Director contended that the sentence imposed was well within the discretion of the Judge and that the non-parole period could be regarded as merciful. 

    Sentencing - General Principles

17. In order to arrive at a proper sentence a sentencing judge has to weigh the maximum penalty fixed by Parliament, the circumstances of the offence and all of the matters set out in the Criminal Law (Sentencing) Act 1988 (SA) insofar as they are relevant.

18. An appropriate sentence should reflect certain broad objectives.  They are the punishment of the offender or retribution to reflect society’s disapproval and rejection of the conduct in question, deterrence of the individual offender as well as deterrence of others, rehabilitation and reform.   In different cases, these considerations will operate in different ways and to different degrees.  They overlap and cannot be considered in isolation.  These considerations are no more than guideposts to the appropriate sentence and sometimes point in different directions.  Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act and the exercise of judgment in light of all relevant matters.

19. A period of imprisonment may be suspended where the court is satisfied that “good reason” exists to suspend.  In Wood v Samuels, Walters J stated that:[1]

    …Speaking for myself, I would think that a suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case. In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court's clemency.

    [1]    Wood v Samuels (1974) 8 SASR 465, 468.

20. There are no comprehensive criteria which determine when a court is to suspend a sentence.  The perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, may serve as important restraints on the choice of a suspended sentence.  The likelihood that further criminal behaviour cannot reasonably be assumed is a matter which may bring the offender within the scheme of the legislative policy which enables the rigours of a custodial sentence to be avoided.

21. 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

22. 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.

23. 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.

24. 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].

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.

26. 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].

27. 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.

28. 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].

29. Youth and a history of employment tend in favour of a sentencing approach which emphasises rehabilitation.  It is relevant to note, however, that the defendant had been in almost constant full time employment since 2007.  This factor had not dissuaded him from offending in the past.

30. A suspended sentence is not the only method through which a rehabilitative approach can be achieved.  The non-parole period of eight months could be described as particularly merciful and provided the defendant a lengthy period of supervision following his release from custody.  Further, the Court was informed that it was probable that the defendant would be released on home detention bail after he had served half of the non-parole period. 

31. The use of the phrase by the Judge “too serious for there to be good reason to suspend” should not be interpreted as indicating that the Judge placed improper weight on the seriousness of the offence to the exclusion of factors personal to the defendant.  I consider that the Judge was conveying in a shorthand manner that, having undertaken the balancing process required, the Judge decided to exercise his discretion against suspension, the seriousness of the offence outweighing factors which pointed in a different direction.

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.  The matters personal to the defendant were given appropriate weight in the fixing of a merciful non-parole period. 

   Conclusion

2. 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.

3. I would dismiss the appeal.

4. PEEK J.    I would dismiss the appeal.  I agree with the reasons of Gray J.

5. NICHOLSON J.    I agree that the appeal should be dismissed for the reasons given by Gray J.