R v Coleman

[2014] SASCFC 121

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v COLEMAN

[2014] SASCFC 121

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Parker)

13 November 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - PARITY BETWEEN CO-OFFENDERS

Appeal against sentence.  The appellant was charged with two others with the offence of attempted aggravated serious criminal trespass in a place of residence.  All three pleaded guilty.  The circumstances of the offending were that the appellant and his co-offenders attempted to steal a cannabis crop from a private residence.  The appellant was not armed but his two co-offenders were.  One of his co-offenders also wore a balaclava.  The appellant had lengthy criminal antecedents.  The appellant also pleaded guilty to acting in breach of a good behaviour bond imposed following a trial before a Magistrate for assault.  The breach occurred less than one month after the appellant entered into the bond.  As a consequence of the breach, the appellant was to be resentenced in regard to that basic offence.  The appellant was sentenced to a period of imprisonment of three years with a non-parole period of one year and 18 months in respect of the offence of aggravated serious criminal trespass.  This sentence was substantially the same as that received by his co-accused.  The defendant received a sentence of six months’ imprisonment in respect of the offence of assault.  The Judge fixed a non-parole period of one year and eight months.  On the appeal, it was conceded that the Judge made a mistake of fact when sentencing, incorrectly sentencing the appellant on the basis that he had made verbal threats in the course of the trespass.

Whether the mistake of fact warranted the intervention of the Court.  Whether the Judge failed to correctly apply the parity principle.  Whether the sentences of imprisonment were manifestly excessive.

Held per Gray J (Vanstone and Parker JJ agreeing) (allowing the appeal in part):

1.  The mistake of fact was minor and does not warrant the intervention of this Court – whether the appellant made verbal threats does not materially impact his culpability in the context of this offending.

2.  The appellant’s role in the offending was not so different from that of his co-offenders so as to warrant a lesser starting point for the head sentence.

3.  The sentence imposed with respect to the offence of aggravated serious criminal trespass was within the Judge’s discretion.

4.  The sentence imposed with respect to the offence of assault was manifestly excessive.

5.  Sentence for assault set aside and, in lieu, appellant resentenced to two months’ imprisonment. 

6.  Non-parole period set aside and, in lieu, non-parole period of one year and six months fixed. 

7.  Sentence to commence on 12 September 2014. 

Criminal Law Consolidation Act 1935 (SA) s 170 and s 270A, referred to.
Lowe v R (1984) 154 CLR 606; R v McGowan (1986) 42 SASR 580, considered.

R v COLEMAN
[2014] SASCFC 121

Court of Criminal Appeal:       Gray, Vanstone and Parker JJ

GRAY J.

1. This is an appeal against sentence. 

   Background

2. The defendant and appellant, Luke Floyd Coleman, was charged on Information with Harold Timothy Cook and Simon Ashley Turner of the offence of attempted aggravated serious criminal trespass in a place of residence.[1]  All three pleaded guilty.  The maximum penalty for the offence is imprisonment for 12 years.  The defendant also pleaded guilty to acting in breach of a good behaviour bond imposed following a trial before a Magistrate for assault.  As a consequence of the breach, the defendant was to be resentenced in regard to that basic offence.  The breach occurred less than one month after the defendant entered into the bond.

   [1]    Criminal Law Consolidation Act 1935 (SA) sections 170, 270A.

3. The defendant was sentenced in respect of the offence of attempted aggravated serious criminal trespass to a term of imprisonment of three years.  In fixing this term, the Judge made a reduction of 12 months on account of the defendant’s plea of guilty.  The Judge then imposed a sentence of six months’ imprisonment for the offence of assault and ordered that that term be served cumulatively upon the sentence of three years’ imprisonment.  The Judge fixed a non-parole period of one year and eight months, backdated to the date on which the defendant was taken into custody, namely 12 September 2013.

4. The circumstances of the offending were that the defendant and his two co-defendants went to a private residence at Paralowie intending to gain entry to the house.  The owner had a cannabis crop and it was the intention of the three defendants to steal that crop.  The incident was recorded on closed circuit television.  Turner, who was wearing a balaclava, went into a carport, setting off an alarm.  The owner of the property came out to see what was happening.  As a consequence, the three defendants were aware that the owner was home.  The owner, on observing the defendants, went inside and locked the front door.  All three defendants then attempted to break down the door.  Turner was armed with a knife and Cook with a machete.  The defendants were unable to gain entry and left the premises.

5. All defendants were under the influence of drugs at the time.  However, it is evident that there had been a degree of planning.  The defendants, between them, had a balaclava, weapons and bags, presumably to enable the cannabis to be cut down and carried away. 

6. The defendant Coleman had lengthy criminal antecedents.  Those antecedents commenced in Queensland and continued in that State for more than five years.  That offending included a number of drug offences, the offence of entering premises to commit an indictable offence, the offence of obstructing and assaulting police officers, offences of assault occasioning bodily harm as well as offences of breaching probation orders.  The offending continued in South Australia from 2011 until the time of the present offending.  In South Australia, the offending included the offences of hindering police, driving dangerously to escape police pursuit, dishonesty offending and assault.  In addition, the defendant failed to comply with his bail agreement on a number of occasions.  Some of the offending both in Queensland and South Australia led to terms of immediate imprisonment being imposed.

   The Appeal

7. Four grounds of appeal were advanced.  First, it was said that the Judge made a mistake of fact when sentencing.  The second complaint was that the Judge failed to correctly apply parity between co-offenders.  The third complaint was that the sentences of imprisonment of three years and of six months were both manifestly excessive.  The final complaint, relating to the first, was that the Judge failed to afford procedural fairness in respect of the mistake of fact. 

   Mistake of Fact

8. It was common ground on appeal that the sentencing Judge made a mistake of fact in saying in respect of all defendants “you were all making verbal threats to the occupants of the house”.  The correct position was that Turner and Cook made threats at a time when the defendant Coleman had already walked away, leaving his co-offenders continuing to kick the door.  Accordingly, it was submitted that a circumstance of increased culpability, namely the making of threats, was wrongly treated by the Judge as conduct of all defendants when this was not the case. 

9. Later in the course of her remarks, the Judge observed:

   I note you were not armed during the course of these events and that you appeared to walk away, leaving the other two continuing to kick the door.  It appears in your counsel’s submissions and Dr Begg’s report that you thought better of your involvement and decided to leave.

10. Counsel for the Director, as mentioned above, acknowledged the error.  However, it was submitted that this should be characterised as a minor factual error not warranting the intervention of this Court.  It was said that the gravamen of the offending involved the three offenders, two of them armed – to the knowledge of Coleman, accosting the victim by attempting to enter his home, by pushing and kicking the door to the house.  Some degree of planning had taken place.  The uttering of threats by one of them did not, it was said, make the offence any more serious.  Their presence, the wearing of the balaclava by Turner and the fact that two were armed conveyed the relevant threat quite apart from the uttering of words. 

11. In my view, the submission of the Director should be accepted.  The defendant Coleman was a party to the planning, was aware that his two offenders were armed, was aware of the wearing of the balaclava and took part in the pushing and kicking of the door.  This was very threatening conduct to which the defendant was a party.  I do not consider that the uttering of a verbal threat or threats added materially to the culpability of the offending. 

12. As the factual error has been conceded nothing turns on the complaint about a lack of procedural fairness. 

    Parity

13. The principle of parity in sentencing requires that like cases ought to be treated alike.  When co-offenders have not engaged in precisely the same conduct, sentencing should be proportionate to the respective degrees of culpability.[2] 

    [2]    See Lowe v R (1984) 154 CLR 606; R v McGowan (1986) 42 SASR 580.

14. The defendant Coleman’s involvement in the offending was not, in my view, so markedly different so as to warrant a lesser starting point of the head sentence.  The defendants were engaged in a joint enterprise and, as discussed above, there is little to differentiate between their respective degrees of culpability.  In my view, the complaint as to lack of parity is of no substance.

    Manifestly Excessive

15. The sentence imposed with respect to the offence of attempted aggravated serious criminal trespass in a place of residence was in my view well within the sentencing discretion.  The defendant’s criminal antecedents precluded the leniency that might attach to a first offender.  The Judge properly recognised the relevant personal antecedents of the defendant and, in particular, his long term problem with drugs.  It is apparent that the Judge had proper regard to the submissions made and to the opinions of Dr Begg.  I do not consider that there is any substance to this complaint.

16. The Judge, when sentencing in respect of the breach of bond, did not address the circumstances of the offending.  Her Honour’s remarks in regard to this offence and the sentence to be imposed were as follows:

    I must also deal with you for the breach of the good behaviour bond.  You were convicted following a trial of a basic offence of assault to be called up for sentence if you breached the bond.  You signed the bond on 14 August in 2014, less than a month before this offending.

    I must now impose a penalty for the assault because of that breach.  The maximum penalty for the offence of assault is imprisonment for two years.  I impose six months’ imprisonment for the assault to be served cumulatively upon the sentence for the primary offences.

17. During sentencing submissions, the Judge was provided with a copy of the sentencing remarks of the Magistrate and the apprehension report of the offence.  No submissions were made about the fact of the offence by the prosecutor.  The Judge queried the defence counsel about the circumstances of the assault and, in particular, the allegation appearing in the papers that the defendant had threatened the victim.  The Judge was informed that that allegation was denied and that, on the trial of the defendant, the victim gave no evidence of being threatened.  The Judge was further informed that the circumstances of the assault were that the defendant had gone to a school to collect one of his own children for a dental appointment.  While doing so, he saw a larger boy bullying some smaller children.  He stepped in between that boy and the smaller children and pushed the older boy to the shoulder while indicating he should go to the office area.  Apparently the boy fell.  However, he sustained no injury.

18. Counsel for the defendant submitted to this Court that, at most, the offending warranted only a very short term of imprisonment and that much was to be said for the imposition of a non-custodial sentence.  Counsel for the Director submitted that the sentence imposed, bearing in mind that the Magistrate described the offence as serious having regard to the fact that it occurred on the grounds of a primary school, was within the sentencing discretion of the Judge.

19. It is of some concern that the Judge in imposing a sentence of six months’ imprisonment did not in her remarks say anything of the circumstances of the offending or of the submissions made by parties and, in particular, by defence counsel.  The absence of relevant remarks makes it difficult for this Court to understand the reason for the sentence imposed and, as a consequence, to deal with the appeal.  However, it is important for the matter to be finalised by this Court.

20. In my view, the sentence of six months’ imprisonment for the push of a child in a school yard in the above circumstances is manifestly excessive.  I would set aside the sentence imposed and re-sentence the defendant to a term of imprisonment of two months.

21. As a consequence, in my view, the defendant should face a total term of imprisonment of three years and two months.  I would fix a non-parole period of one year and six months.  That sentence should be backdated to commence on 12 September 2013. 

    Conclusion

22. In accordance with these reasons, I would allow the appeal for the limited purpose of setting aside the sentence of six months imprisonment for the offence of assault and, in lieu, impose a sentence of two months’ imprisonment.  As a consequence, the defendant faces a total period in prison of three years and two months.  I would set aside the non-parole period fixed by the sentencing Judge and, in lieu, impose a non-parole period of one year and six months.  The sentence should commence on 12 September 2013.

23. VANSTONE J:     I agree with the orders proposed by Gray J and with the reasons he has written.

24. PARKER J:          I agree with the reasons of Gray J and would uphold the appeal to the extent that he has proposed.