R v Collins

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.