R v Collins

Case [2018] SASCFC 97

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v COLLINS

[2018] SASCFC 97

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Lovell and The Honourable Justice Doyle)

18 September 2018

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CONDUCT - THREATS

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

The appellant pleaded guilty to the offence of aggravated threatening to cause harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935. The offending was aggravated because the threat was made against a Magistrate who had sentenced the appellant for other offending. From a starting point of 2 years and 6 months imprisonment, and after a deduction of 30% for his plea of guilty, the appellant was sentenced to a term of imprisonment for 1 year and 9 months, made cumulative upon the sentence of 18 months and 10 weeks that had been imposed by the Magistrate. The Sentencing Judge extended the non-parole period imposed by the Magistrate by 18 months. The result was a sentence of imprisonment for 3 years, 5 months and 9 days with a non-parole period of 2 years and 8 months.

The appellant appealed on the grounds that:

1. The sentence was manifestly excessive;

2. He was denied procedural fairness;

3. The Sentencing Judge erred in finding that the appellant was not remorseful and had been uncooperative in relation to the pre-sentence report.

Held, on grounds 2 and 3 per Vanstone J (Lovell and Doyle JJ agreeing):

1. Procedural fairness was not denied to the appellant;

2. The Sentencing Judge did not err in finding that the appellant was not remorseful and that he had not cooperated in relation to the pre-sentence report.

Held, on ground 1 per Lovell and Doyle JJ, allowing the appeal:

1. The sentence imposed by the Sentencing Judge was manifestly excessive;

2. From a starting point of 20 months imprisonment, and after a deduction of 30% for his plea of guilty, the appellant is resentenced to 14 months imprisonment to be served at the conclusion of the sentence imposed by the Magistrate;

3. The non-parole period is extended by 9 months.

Vanstone J (dissenting):

1. The sentence was within the range available to the Sentencing Judge.

Criminal Law Consolidation Act 1935 (SA) s 19(2), referred to.
Attorney-General v Thamm (1991) 57 SASR 83; Markarian v The Queen (2005) 228 CLR 357, considered.

R v COLLINS
[2018] SASCFC 97

  1. VANSTONE J:     Michael John Collins appeals against the sentence imposed upon him in the District Court for aggravated threatening to cause harm.  The offence was aggravated because it involved a threat against a magistrate.  Having been sentenced by the Magistrate via audio visual link, the appellant made the threat to a prison officer, to the effect, ‘I’m gonna rape that fucking Judge when I get out, I swear’.

  2. Against a maximum penalty of…

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R v Collins [2018] SASCFC 97
Case
[2018] SASCFC 97
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CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant for aggravated threatening to cause harm, contrary to section 19(2) of the *Criminal Law Consolidation Act 1935*. The threat was made against a Magistrate who had previously sentenced the appellant for other offences. The appellant pleaded guilty, and after a deduction for this plea, was sentenced to 1 year and 9 months imprisonment, to be served cumulatively upon an existing sentence. The Sentencing Judge also extended the non-parole period previously imposed by the Magistrate. The appeal was heard by Vanstone, Lovell, and Doyle JJ of the Supreme Court of South Australia.

The legal issues before the court were whether the sentence imposed was manifestly excessive, and whether the appellant had been denied procedural fairness. The latter ground related to the Sentencing Judge's findings regarding the appellant's lack of remorse, evidenced by a letter, and his uncooperative behaviour concerning a pre-sentence report. The appellant argued these findings were made without prior notice.

Vanstone J considered the grounds relating to procedural fairness and found that the Sentencing Judge was entitled to infer from the timing and content of the appellant's letter that it was written solely to mitigate his situation, particularly given his continued abusive behaviour towards the Magistrate when interviewed by police weeks later. Her Honour also found that the Sentencing Judge's observation about the appellant's uncooperative conduct with the pre-sentence report writer did not amount to a denial of procedural fairness, as the issue was raised in submissions and the Judge ultimately agreed to move on, leaving it to defence counsel to pursue if they wished. While acknowledging the sentence was severe, Vanstone J concluded it was within the available range and would have dismissed the appeal.

However, Lovell and Doyle JJ disagreed with Vanstone J on the first ground, finding that the sentence was manifestly excessive. They noted that the Sentencing Judge's starting point of 2 years and 6 months imprisonment, with a 30% deduction for the guilty plea, resulted in a sentence of 1 year and 9 months. This was made cumulative upon the Magistrate's sentence of 18 months and 10 weeks, and the non-parole period was extended by 18 months, leading to a total sentence of 3 years, 5 months, and 9 days with a non-parole period of 2 years and 8 months. The majority concluded that the sentence was so severe as to be unreasonable or plainly unjust, and therefore allowed the appeal on the ground of manifest excess.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, I consider that the sentence imposed was a severe one, but that it was within the range of sentences available to the Judge.Background The appellant was sentenced on 13 June 2017 by the Magistrate in a regional court for attempted serious trespass, two counts of unlawful possession, two counts of carrying an offensive weapon, three counts of larceny and two counts of being unlawfully on premises. The attempted pharmacy breaking offence was committed late at night. It was thwarted by the presence of the pharmacist who was working late at the premises. The remaining offences involved a succession of summary offences occurring during the period November 2016 to January 2017. The Magistrate remarked on the extensive criminal record of the appellant, a man of some 38 years of age. While his previous convictions are mostly for dishonesty offences, in 2007 the appellant was convicted in the Penrith Local Court in 2007 for maliciously inflicting grievous bodily harm. He received a sentence of three years and four months imprisonment. There are also numerous occasions when the appellant has been convicted in relation to carrying offensive weapons, mainly knives. The Magistrate imposed a single sentence of 18 months and 10 weeks imprisonment, backdated to 15 March 2017. She fixed a non-parole period of 14 months. Having reviewed the matters before the Magistrate, I consider that the sentence imposed could be described as lenient. However, apparently the appellant had been led to believe by his legal advisors that the likely sentence would be very much less than that imposed. The threat was heard by a correctional officer employed by Group 4. That officer was assisting to convey prisoners from their cells to the audiovisual suite. He returned the appellant from the suite to an area where there was another prisoner. He said he left the cell door open so that the appellant could go to the common area if he wished. As he was leaving that area the officer heard the appellant utter the threat I have already set out. He described the appellant’s voice as agitated and raised. Another prisoner was in the cell at that time. He said that when he returned from the court the appellant was angry. He told the prisoner that he had sworn at and threatened the ‘Judge’ (which was not so) and that he was not happy as he received a longer sentence than he expected. He said the Magistrate did not like him because she had given him bail and he had breached the conditions of it. On 6 July 2017 the appellant was interviewed about the offence. He was told that the interview related to his court appearance on 13 June before the (named) Magistrate. He responded ‘Yeah. Fucking mole… I’m not sorry’. He went on to say that his reason for threatening the Magistrate was that he was facing another charge, or charges, and thought that if he swore at her and said ‘these type of things’ it would create a situation where she would need to recuse herself from hearing his future charges. He said, had the Magistrate been a ‘bloke’, he would have ‘said something to him’. In that instance he would have said he would ‘bash the fuck out of you when I see you outside’. He said that, when he threatened the Magistrate, he knew it would be reported and that she would hear about it. He said he did not intend to carry out the threat, but if she did not disqualify herself, he would say it to her again.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have considered whether the addition to the non-parole period was excessive. The extension amounted to six-sevenths of the new sentence. That is an extremely high proportion. But on the other hand, the appellant’s conduct throughout these matters, viewed against his previous offending and disobedience to earlier Court orders, gave little hope for successfully completing a long period on parole.Conclusion In all the circumstances, while I consider the sentence to have been severe, it was within the range available to the Judge. I would refuse permission to appeal on ground 3 and dismiss the appeal. LOVELL AND DOYLE JJ: We have had the advantage of reading the draft judgment of Vanstone J. We adopt her Honour’s summary of the circumstances of the offending, and the appellant’s personal circumstances. We agree with her Honour’s reasons in relation to grounds 2 and 3, and hence would dismiss ground 2 and refuse permission to appeal on ground 3. However, we are unable to agree that ground 1 should also be dismissed. In our view the appeal should be allowed on that ground. Our reasons follow.Was the sentence imposed manifestly excessive? In sentencing the appellant for aggravated threatening to cause harm, the Sentencing Judge considered that the appropriate starting point for sentence was imprisonment for a period of 2 years and 6 months. To allow for the appellant’s plea of guilty, the Sentencing Judge deducted 30% from the sentence and imposed a period of imprisonment of 1 year and 9 months. The Magistrate who sentenced the appellant for a large number of offences had imposed a period of 18 months and 10 weeks imprisonment with a non-parole period of 14 months, backdated to 15 March 2017. The Sentencing Judge, correctly, made the 1 year and 9 months imprisonment that she imposed cumulative upon the sentence that had been imposed by the Magistrate. The Sentencing Judge extended the existing non-parole period by 18 months. The total sentence imposed was therefore 3 years 5 months and 9 days imprisonment with a non-parole period of 2 years and 8 months. The imposition of an appropriate sentence involves the exercise of judicial discretion based on an assessment of various factors such as the circumstances in which the offending was committed and the character and antecedents of the offender. The appellant contended that the sentence imposed was manifestly excessive; that there was an “outcome error” even though no “process error” could be identified. The principles that apply to an appellate court reviewing an exercise of a discretion are well established and understood. It is not sufficient for this Court to conclude that it would have come to a different decision to the one reached by the Sentencing Judge; what must be established is that the exercise of the discretion has been infected by some error, or alternatively, that the decision ultimately made is on its face unreasonable or plainly unjust.[1] Gleeson CJ, Gummow, Hayne and Callinan JJ considered the task of the appellate court in Markarian v The Queen, saying:As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.[2](Citations omitted)[1] House v The King (1936) 55 CLR 499 at 504-5; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 [76].[2] Markarian v The Queen (2005) 228 CLR 357 at 370-71 [25].

Ratio Decidendi

Legal Principle Established

The appellant was given permission to appeal on grounds that the sentence is manifestly excessive and that he was denied procedural fairness. That latter ground rested on an argument that the Judge found that the letter was not due to remorse, and that the appellant was unco-operative in relation to the pre-sentence report, both those findings having been made without advance notice to the appellant. Permission to appeal is further sought on ground 3, asserting that the same findings were erroneous.Consideration I deal with the last mentioned issues first. In my view the Judge was entitled to take the view that the letter was written purely for the purpose of attempting to mitigate the appellant’s situation. That is a clear inference which can be drawn from its timing alone. It is notable that more than three weeks after the threat was uttered, when the appellant was interviewed by police, he was still abusive towards the Magistrate. There was nothing contrite about him at that point, nor six days later when he again spoke to police. The letter itself did not appear until well after his appearance in the District Court and at a time when his sentencing hearing was approaching. Moreover, the place to which the letter was directed says something about the purpose for which it was written. I reject the suggestion that the Judge was obliged to take any particular view of the letter, or that she was obliged to signal her attitude in relation to it. As to the Judge’s observation that the appellant had been unco-operative with a person designated to prepare a pre-sentence report, that occurred against the background of an interchange during defence counsel’s submissions in which the Judge asked why the appellant had not co-operated with the report writer. His counsel told the Judge that he had not had an opportunity to take instructions on that matter, but submitted that it could not be held against the appellant. The Judge agreed with that. She added that it displayed ‘a certain attitude’. Counsel told the Judge that he could explore the issue. The Judge then said, ‘Let’s move on’. The first point to make about this issue is that the refusal to co-operate in relation to a pre-sentence report was not held against the appellant. Understandably the Judge was curious about the appellant’s attitude, in circumstances where Mr Vadasz, whose firm was acting for the appellant, had apparently sought the report in the first place. Telling counsel to ‘move on’ did not amount to an instruction to abandon any investigation as to the appellant’s reasons for not co-operating. It was up to counsel to determine if he would pursue that avenue. He chose not to. In all the circumstances it was plain that the appellant would receive no credit for whatever mitigating matters might have emerged in such a report, or for taking steps to advance his rehabilitation. There it rested. I reject the suggestion that a sentencing Judge is obliged to accept any submission made by counsel unless, either the prosecution takes issue with it, or the Judge expresses incredulity about it. Counsel must make their submissions as persuasively as possible and support them with such material as is available. That prosecuting counsel does not take issue with any particular submission made may not be of much moment. Generally, prosecuting counsel are hearing, for the first time, various submissions relating to matters personal to a defendant on which their brief is silent. Like the Judge, they may not be in a position there and then to consider and assimilate the submissions alongside the acknowledged facts. The onus to persuade the Judge remains on the defendant. If the Judge, on reflection, considers that he or she will not accept one or more of the submissions made, it is not for defence counsel to complain of a lack of procedural fairness.