R v Collins - [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

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’.
Against a maximum penalty of seven years imprisonment the Judge imposed a sentence of one year and nine months imprisonment to be served cumulatively, and extended the appellant’s non-parole period by 18 months.
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.
He was interviewed a second time on 12 July, essentially to be told he would be charged. He was asked what he thought the Magistrate would think when she learned of what he had said. He said, ‘I don’t fucking care. To tell you the truth. I don’t care’.
The appellant pleaded guilty to the threatening harm offence in the Magistrates Court and was committed for sentence to the District Court. He first appeared there on 19 January 2018. The matter came before the sentencing Judge on 21 March. On the previous day a letter of apology from the appellant to the Magistrate had been sent to the chambers of the sentencing Judge. It was dated 13 February 2018. The submissions were completed on 21 March and the appellant was sentenced on 11 April 2018.
In sentencing, the Judge referred to a number of the submissions made. She indicated she did not accept the submission that the threat was made for the purpose of excluding the Magistrate from considering other charges. She said that this would not have mitigated the threat in any event. In relation to the letter, the Judge said she saw it as an attempt to minimise the consequences of the appellant’s conduct, rather than as a demonstration of genuine remorse. She also noted that the appellant had been unco-operative in declining an interview with a probation officer for the purpose of the compilation of a pre-sentence report. The Judge said that the appellant remained ‘disingenuous and indisposed to rehabilitation’. The Judge noted the importance of both general and personal deterrence and the seriousness with which such matters have been regarded in the Court of Criminal Appeal.
In sentencing, the Judge took a starting point of two and a half years imprisonment and reduced it to one year and nine months on account of the early plea of guilty. She ordered that it be served cumulatively upon the existing sentence and extended the non-parole period by 18 months. That meant that the total period to be served became three years, five months and nine days, with a non-parole period of two years and eight months, commencing on 15 March 2017.
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.
In my view grounds 2 and 3 are without merit.
I turn to the principal ground, that the sentence is manifestly excessive. As mentioned, the maximum penalty was one of seven years imprisonment. The plea was entered on the basis that the appellant was reckless as to whether the threat would arouse a fear that it would be carried out.
In submissions to this Court it was suggested that the Magistrate would not likely have taken it seriously. That submission is untenable. The threat was a particularly nasty one uttered by a man who, it was expected, would be released in 16 or 17 months. That it was aimed at a Magistrate who worked at a regional centre made it worse, if anything, as plainly the appellant would be in a position to find the Magistrate if he so desired. It is a matter of concern that the appellant’s ill will against the Magistrate continued in the weeks following the threat. In Attorney-General v Thamm (1991) 57 SASR 83, at 86 this Court characterised offences such as this as follows:
[These offences] go to the fundamental basis of the rule of law and the administration of justice by judicial officers properly protected from threats to themselves or their families. The offences clearly called for a firm and deterrent sentence…
As such, the aspect of deterrence assumes an even greater significance. Aggrieved litigants in any court should be deterred from making personal threats against court staff or against the judges.
While the offences under consideration there were plainly more serious, the observations of the Court are applicable to the present case.
The starting point of two and a half years imprisonment was admittedly a severe one. However the appellant received the benefit of a 30 per cent reduction on account of his early plea of guilty. I cannot say that the sentence arrived at, of one year and nine months imprisonment, was manifestly excessive. As I have said, the threat was a particularly nasty one and capable of causing extreme distress. The appellant’s antecedents left little room for leniency.
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].
The appellant submitted here that it could be inferred from the result that there was “a failure properly to exercise the discretion which the law reposes in the court of first instance”.[3] Thus it was contended that the final sentence of the Judge was unreasonable or plainly unjust.
[3] House v The King (1936) 55 CLR 499 at 505.
As to the approach to be adopted, King CJ observed in R v Morse:
There is no suggestion that the learned sentencing Judge made any error of fact or law or that he failed in any way to take into account the relevant considerations. This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[4]
This approach was adopted by Doyle CJ (Prior and Vanstone JJ agreeing) in R v Nemer.[5]
[4] R v Morse (1979) 23 SASR 98 at 99.
[5] R v Nemer (2003) 87 SASR 168.

When considering whether a sentence is manifestly excessive a submission that a judge failed to give adequate or proper weight to a particular factor does not, of itself, amount to a ground of appeal. As Vanstone and Parker JJ observed in R v Lutze:
A submission that the sentencing judge did not give adequate weight to a factor is not, of itself, capable of enlivening the appeal court’s authority to intervene. Such a submission falls short of an assertion that no account was taken of a material consideration. It is not a complaint of specific error. At most, it can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the judge have reached a sentence which is so unreasonable or plainly unjust, or, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”.[6]
[6] R v Lutze (2014) 121 SASR 144 at 154 [47].
What reveals manifest excess (or inadequacy) of a sentence is consideration of all the matters that are relevant to fixing the sentence. As the High Court observed in Hili v The Queen:
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.[7]
(Citations omitted)
[7] Hili v The Queen (2010) 242 CLR 520 at 538-39 [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Offending of the present type appears to be comparatively rare and there are few decisions that may assist. We also bear in mind the limited utility of comparison with other cases.
However, the observations of the Court of Criminal Appeal in Attorney-General v Thamm[8] are helpful. Mr Thamm sent a “sympathy card” to four judges of the Family Court. The cards were sent to their individual home addresses. The cards had written on them the words “remember Judge Opas and others”. The words referred to the tragic killing (murder) of Justice Opas at his home in 1984. The commission of the offences was set against the background of ongoing proceedings between Mr Thamm and his ex-wife concerning custody and access arrangements for the two children of the marriage. Mr Thamm was charged with four counts of threatening life under s 19(1) of the Criminal Law Consolidation Act 1935 (SA). He was found guilty after a trial by jury. The maximum penalty prescribed for the offence was 10 years imprisonment.
[8] Attorney-General v Thamm (1991) 57 SASR 83.
The Judge sentenced Mr Thamm to a period of 2 years imprisonment on each count and made all the sentences concurrent. The Crown appealed the sentence as being manifestly inadequate.
On appeal, the Court did not interfere with the sentence imposed on each count but varied the order that the sentences all be served concurrently. The Court ordered that the sentences in relation to counts 1 and 2 be served concurrently. Counts 3 and 4 were to be served concurrently but cumulatively upon that to be served on counts 1 and 2 leaving a final sentence of 4 years imprisonment. The Court imposed a non-parole period of 18 months.
The Court observed that the offending was aggravated by the fact that Mr Thamm sent the cards to the home addresses of the four judges. None of the judges had their names in the telephone book and two did not have their names on the electoral roll. The offending was obviously planned rather than spontaneous. Further, Mr Thamm at the time of the offending was on bail for a similar offence having sent a threatening letter to the Family Court.
Against that background the Court observed:
It is clear, however, that the respondent’s state of mind and the need for deterrence are very important factors in sentencing offenders in respect of these types of offences. The threat in itself, which creates fear in the recipients and their families, as these letters did, warrant serious penalties. These offences were part of a calculated plan. They go to the fundamental basis of the rule of law and the administration of justice by judicial officers properly protected from threats to themselves or their families. The offences clearly called for a firm and deterrent sentence.[9]
[9] Attorney-General v Thamm (1991) 57 SASR 83 at 86.
More recently Hinton J sentenced an offender, J, who was charged with one count of threatening a person involved in judicial proceedings contrary to s 248 of the Criminal Law Consolidation Act 1935. The maximum penalty prescribed for that offence is 10 years imprisonment.
A Magistrate sentenced J for the offence of breach of bail. While being escorted from court J said in a raised voice “When I get out of prison I am going to hang around outside the court and I am going to kill that fucking cunt magistrate”. The threat was repeated twice. While not shouting, the offender’s tone of voice was described as “nasty and angry”. Similarly, J was disappointed with being sentenced to a term of imprisonment when he considered that the time already served was a sufficient penalty. He had an extensive criminal history largely related to his chronic drug problem. Hinton J would have imposed a term of imprisonment of 16 months but reduced that sentence by 15% on account of J’s plea of guilty.
When sentencing J, Hinton J stated:
Judicial officers must be able to go about their job without fear of retribution in relation to the decisions they are called upon to make on a daily basis. You may not think it but many of the decisions judges and magistrates are required to make are difficult decisions because judicial officers make them knowing that they will have a significant impact on ordinary people. The community requires that those difficult decisions be made. Offences such as that which you have committed are intended to protect the operation of the rule of law and the administration of justice. Judicial officers must be free from fear and unnecessary pressures so that they make appropriate decisions in accordance with the laws of the State.
General deterrence, therefore, attracts significant weight in sentencing for the offence of threatening a person involved in judicial proceedings.[10]
We agree with Hinton J’s remarks.
[10] Sentencing Remarks, 27 April 2018.
Discussion
The appellant’s offending was spontaneous and in response to a sentence of imprisonment he was not expecting. It was common ground that he had received legal advice suggesting the Magistrate may decide that time served in prison to the date of sentence may be a sufficient penalty. The advice he received, from an inexperienced practitioner, was too optimistic. Like Vanstone J, we consider the sentence imposed by the Magistrate to be a moderate one.
Being disappointed, however, is not an excuse to threaten a judicial officer. As Hinton J said, judicial officers are required to make difficult decisions that have a significant impact on people appearing in front of them. Judicial officers should not be put in fear when performing their task. General and personal deterrence play a significant role in sentencing.
The circumstances of the offending have been explained in the reasons of Vanstone J. The offending was undoubtedly serious and called for a significant measure of general deterrence.
The threat uttered was disgraceful in nature, and aimed at a Magistrate who was working in a regional centre. The Magistrate’s residence could be easily located. When interviewed about the offence on 6 July 2017 and again on 12 July 2017 the appellant expressed no remorse. The appellant has an extensive criminal history. We accept that the appellant continues to show no remorse.
We note that the maximum penalty prescribed for this offence is 7 years imprisonment. In each of Thamm and J, the maximum penalty prescribed was 10 years imprisonment.
While accepting that deterrence has an important role to play in such offences, in our view the starting point of 2 years and 6 months imprisonment for this offence has led to a sentence which is unreasonable or plainly unjust. While an appellant cannot appeal against a starting point, it is a critical step in arriving at the ultimate sentence to be imposed. It is the stage of the sentencing process at which comparison with the maximum penalty for the offence, and the sentences imposed in other cases, is most readily made. In our view, the use of an unreasonably high starting point rendered the ultimate sentence of 1 year and 9 months imprisonment (after an approximately 30% reduction for the appellant’s guilty plea) manifestly excessive. We would allow the appeal and resentence the appellant.
We also have some reservations about the Sentencing Judge’s extension of the non-parole period by 18 months. As Vanstone J notes, this is six sevenths, or approximately 85%, of the additional sentence. The overall non-parole period following the extension was almost 80% of the overall head sentence. While this is very high, we acknowledge that the Sentencing Judge was entitled to take the view that the appellant had poor prospects of successful rehabilitation. In any event, as we have already decided that it is appropriate to interfere on the basis that the head sentence was manifestly excessive, it is not necessary to reach a final view as to whether the sentence was also manifestly excessive in this respect.
Resentence
We have had regard to the matters personal to the appellant. We take into account that deterrence has a significant role to play in arriving at an appropriate sentence. We would start with a term of imprisonment of 20 months. We allow a 30% discount for the early plea. We reduce the sentence to one of 14 months imprisonment. That is to be served at the conclusion of the sentence imposed by the Magistrate.
We would extend the non-parole period by 9 months.
Order
We would dismiss the appeal on ground 2, and refuse permission to appeal on ground 3. We would order that the appeal be allowed on ground 1, and order that the sentence imposed in the District Court be set aside. We would substitute a sentence of imprisonment of 14 months, to be served cumulatively at the expiration of the sentence imposed by the Magistrate. We would extend the non-parole period by 9 months.
The final sentence would be 2 years, 10 months and 9 days imprisonment, with a non-parole period of 23 months. We would order that both the sentence and the non-parole period run from 15 March 2017.