R v CORLETT

Case [2017] SASCFC 112

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CORLETT

[2017] SASCFC 112

Judgment of The Court of Criminal Appeal

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

4 September 2017

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - PARTICULAR CASES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE

This is an appeal against a non-parole period.

The appellant pleaded guilty to a charge of murder five days before the trial was to start. A life sentence with a non-parole period of 18 years was imposed following this plea.

The grounds of appeal are:

1.  The non-parole period is manifestly excessive.

2.  The learned sentencing Judge erred in finding that the offending was not at the lower end of the range of objective seriousness.

3.  The learned sentencing Judge erred in failing to specify the reduction she made to the non-parole period by reason of the appellant’s guilty plea.

A Judge granted permission to appeal on ground 1, refused permission on ground 2 and granted leave to amend the application to add ground 3.

With respect to ground 3, the appellant submitted that because he was inadequately advised his sentence should be reduced by 30 per cent in accordance with s 10C(2)(d) of the Criminal Law (Sentencing) Act 1988 (SA) (‘the Act'). Furthermore, the appellant submitted it was impossible to know whether the sentencing Judge proceeded on the basis that the maximum available reduction was up to 10 per cent (pursuant to s 10C(2)(f) of the Act) or up to 30 per cent (pursuant to s 10C(2)(d) of the Act).

With respect to ground 1, the appellant submitted that the circumstances of the offending meant a shorter non-parole period was warranted.

Held per Parker J (Lovell and Doyle JJ agreeing) dismissing the appeal:

With respect to ground 3:

1. There was no information before the Judge that could satisfy her Honour that the appellant was entitled to a discount under s 10C(2)(d) of the Act, nor was any submission made to that effect (at [47] to [48]).

2.  The sentencing remarks made sufficiently clear that the sentencing Judge considered:

a. The appropriate starting point was a life sentence with the minimum non-parole period of 20 years (pursuant to s 32A(1) of the Act);

b. The sentence should be reduced by 10 per cent (i.e. from 20 years to 18 years) due to the appellant’s guilty plea (pursuant to s 10C(2)(f) of the Act); and

c. That special reasons, specifically her Honour’s conclusion that she “could not be satisfied [the appellant was] properly advised” warranted the reduction of the minimum non-parole period (pursuant to s 32A(2)(b)…

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R v Corlett [2017] SASCFC 112
Case
[2017] SASCFC 112
Decision Date

CaseChat Overview and Summary

This matter came before the Full Court of the Supreme Court of South Australia on appeal against a non-parole period fixed by a judge. The appellant, who had been convicted of murder, sought to challenge the length of the non-parole period imposed.

The central legal issue before the Full Court was whether the sentencing judge had erred in fixing the non-parole period. Specifically, the court considered whether "special reasons" existed, as required by section 32A(2)(b) of the Sentencing Act, to justify a non-parole period shorter than the prescribed minimum of 20 years. The court also examined whether the sentencing judge had adequately explained the discount applied for the guilty plea and whether the circumstances surrounding the plea constituted special reasons.

The Full Court, in dismissing the appeal, reasoned that the appellant's conduct, including arming himself with a knife after a series of altercations, indicated the offence was not at the lower end of objective seriousness. While the sentencing judge had adopted a merciful approach by fixing a notional starting point of 20 years and imposing an 18-year non-parole period, the court found this was not manifestly excessive. The court clarified that while a guilty plea and its surrounding circumstances are relevant under section 32A(3)(b) of the Sentencing Act, they do not, of themselves, constitute "special reasons" to reduce the mandatory minimum non-parole period. The court noted that the inadequacy of legal advice, even if it delayed a guilty plea, did not amount to special reasons warranting a departure from the statutory minimum. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

A judge granted permission to appeal on ground 1, refused permission on ground 2 and granted leave to amend the application so as to add ground 3.Background On 25 April 2014 the appellant and the victim, Kane Bogner-Holmes, both attended a party at the home of a friend. The appellant and the victim had known each other since childhood. They were described as being drunk by witnesses who were present at the party. The victim recorded a blood alcohol level of 0.131 per cent at the time of his death. No alcohol was detected in the blood of the appellant when a sample was taken about 11½ hours after the stabbing of the victim. However, samples taken at that time recorded positive results for cannabis in his urine and blood and methamphetamine and amphetamine in his urine. During the course of the party a series of altercations occurred between the appellant and the victim. The period over which those altercations occurred is unclear. The first altercation occurred following disputation amongst other guests at the party that also involved the victim. During this altercation the appellant moved towards the victim with scissors in his hand but was easily disarmed by a female witness. The appellant head-butted the victim who responded by striking the appellant in the face with a beer bottle from which he was drinking. The two men then traded punches. The appellant placed the victim in a headlock while a female guest kicked the victim in the head, face and lower body. The two men were then separated by others. The second altercation arose after the appellant insulted the partner of the victim. The victim jumped over some furniture and hit the appellant twice with a pool cue. The appellant took the pool cue from the victim and the latter then picked up a sack trolley. The victim put down the trolley when asked to do so by another guest. The third altercation occurred when the appellant followed the victim into the bathroom after shouldering the door open. The victim was cleaning himself up after the earlier altercations. The two men began fighting again. The appellant suffered a fractured tooth when his head hit the side of the bath. He then left the bathroom and returned with a T-handled Allen key. During the course of the evening the appellant had been seen to pick up that object on at least five occasions. The appellant struck the victim twice with the Allen key. This caused two relatively insignificant penetrating wounds to his back. The victim held a mirror that he had been using to clean his face in a way that suggested that he might use it as a weapon. He said that he would smash the mirror over the appellant’s head and stab him with it if he was not left alone. The victim also threatened the appellant with a towel rail but dropped it after witnesses asked him to do so. The appellant then left the bathroom. At that point he was heard to say: “I just buried my Mum”. The appellant then went to the kitchen and opened a drawer to obtain a knife. He returned to the bathroom with the knife, cornered the victim and made several stabbing motions towards him. He then grabbed the victim by his T-shirt, pulled the victim towards himself and then stabbed him once to the chest. The knife cut the victim’s right coronary artery in half and penetrated his right atrium. That wound caused his death. The appellant was heard to say: “I hope you liked the knife in your ribs”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, the actions I have described, and in particular the conduct of the appellant in leaving the bathroom to find a dangerous weapon, indicate that the offence was not at the lower end of the range of objective seriousness. Her Honour adopted a merciful approach by fixing the notional starting point at 20 years and imposing a non-parole period of 18 years. The non-parole period was not manifestly excessive. I would dismiss ground 1. Conclusion I would dismiss the appeal. LOVELL AND DOYLE JJ: We agree that the appeal should be dismissed. We agree with the reasons of Parker J. The sentencing remarks below did not expressly identify the notional starting point for the appellant’s non-parole period, or the discount that was applied on account of his guilty plea. While the circumstances do not always require that this be done, in a case such as the present where there was a mandatory minimum non-parole period, and a submission that incompetent advice might have affected the timing of the guilty plea, it would have been preferable to have done so. But sentencing remarks do not exist in a vacuum. They must be read and understood in the context of the submissions made at the sentencing hearing. Further, the nature of sentencing remarks, and the desirability of brevity, mean that this context will not always be apparent on the face of the sentencing remarks. In the present case, it is an important part of the relevant context that while the then counsel for the appellant did submit, or assert, that the timing of the plea was affected by incompetent advice, he did not ever submit that this entitled the appellant to something more than a 10 per cent discount under s 10C(2) of the Criminal Law (Sentencing) Act 1988 (SA) (the Act). Further, the prosecutor appeared to accept in his submissions that her Honour might nevertheless take this factual matter into account in determining whether there were special reasons under s 32A(2) of the Act for fixing a non-parole period of less than the mandatory minimum of 20 years. When her Honour’s sentencing remarks are read in this context, it is in our view sufficiently clear that her Honour considered that the appropriate notional starting point was a non-parole period of 20 years imprisonment; that it was appropriate to reduce that sentence by 10 per cent on account of the appellant’s plea of guilty (under s 10C(2)(f) of the Act); and that there were special reasons that warranted a non-parole period less than the mandatory minimum of 20 years (under s 32A(2)(b) of that Act). Her Honour thus fixed a non-parole period of 18 years, being 10 per cent less than her starting point of 20 years. In circumstances where we thus consider that the sentencing process undertaken, and the discount applied, are sufficiently apparent from a proper understanding of the sentencing remarks, there is no merit in the third ground of appeal - which complains that her Honour failed to specify the discount that she applied. In concluding that there were special reasons that warranted a non-parole period of less than the mandatory minimum of 20 years, it appears that her Honour relied upon the asserted inadequacy of the advice provided to the appellant, and an inference that this delayed the appellant’s decision to plead guilty. We agree with Parker J that, while a factual consideration of this nature was relevant to the determination of the appropriate discount for the appellant’s guilty plea under s 10C, it did not constitute special reasons to warrant a non‑parole period of less than 20 years.

Ratio Decidendi

Legal Principle Established

In the alternative, the respondent submits that if the basis upon which her Honour had imposed sentence is not sufficiently transparent, and therefore reveals error, a non-parole period of less than 18 years could not be justified and the appeal should be dismissed.[6][6] R v Kreutzer (2013) 118 SASR 211 at [10], Kourakis CJ.Consideration I will first consider ground 3 of the appeal and then ground 1. Section 32A(2)(b) of the Sentencing Act required that the Judge be satisfied that special reasons existed before her Honour could fix a non-parole period that was shorter than the prescribed period of 20 years. Section 32A(3) directs that when deciding whether special reasons exist for the purposes of s 32A(2)(b) the court must have regard to the matters listed in the three enumerated paragraphs of s 32A(3) and no other matters. Section 32A(3)(b) stipulates that the fact that the offender has pleaded guilty and the circumstances surrounding the plea are matters that must be taken into account in determining whether special circumstances exist. Kourakis CJ (with Peek, Stanley, Lovell and Doyle JJ agreeing) held in R v Hallcroft that “[s]pecial reasons should not be conflated with the prescribed matters to which the Court’s consideration is confined by s 32A(3)”.[7] [7] (2016) 126 SASR 415 at [58]. The Chief Justice also observed in Hallcroft (with the other four members of the Court agreeing) that:… special reasons to reduce the statutory minimum non-parole period will not be established by the mere making of a guilty plea. It is a necessary condition for the reduction of the non-parole period below the statutory minimum, that the statutory minimum prevents the court from giving full effect to the reduction it would otherwise have made on account of the offender’s plea of guilty. However, the inability to give effect to that reduction will only amount to a special reason to depart from the statutory minimum if the failure to do so would result in a sentence so manifestly disproportionate to all of the circumstances of the case that the case should be treated as an exception to the rule.[8] [8] Ibid at [70]. In determining whether special reasons existed for fixing a non-parole period less than the mandatory minimum the Judge was required by s 32A(3)(b) to take into account the fact of the guilty plea and the surrounding circumstances. Of course, because her Honour passed sentence before Hallcroft was decided, she was not guided by the observation of the Chief Justice in Hallcroft that special reasons will not be established by the “mere making of a guilty plea”. In my view the Chief Justice’s use of the qualifying word “mere” was not intended to suggest that if there is some justifiable explanation for the delay in entering a guilty plea that might suffice to establish special reasons. The point being made by the Chief Justice was that the purpose and effect of s 32A(3)(b) is to define and confine the relevant considerations that must be taken into account in determining whether special reasons exist. However, those considerations are not, of themselves, special reasons. The suggested failure to provide appropriate or timely advice was no more than a circumstance surrounding the appellant’s plea in terms of s 32A(3)(b). Thus, even if the delay in entering the guilty plea was caused by inadequate or untimely advice, it could never be a special reason for setting the non-parole period below the mandatory minimum.