R v Davey - [2017] SASCFC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAVEY
[2017] SASCFC 151
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Hinton)
16 November 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against non-parole period imposed upon the appellant’s pleas of guilty to murder, rape and theft.
The appellant raped and murdered a nurse in the Anangu Pitjantjatjara Yankunytjatjara Lands after tricking her into leaving her home. The appellant stole the ambulance parked at the victim’s house and used it in the commission of the offences and to flee.
The appellant has poor antecedents, including a number of similar offences, many of which were committed while on parole. According to s 10C of the Criminal Law Sentencing Act 1988 (SA) (the Sentencing Act), the appellant was entitled to a reduction of up to 40 per cent because he pleaded guilty to the charge of rape within four weeks of being charged, and up to 30 per cent for the charges of murder and theft because he pleaded guilty before his committal. Section 32(5)(ab) prescribes a mandatory minimum non-parole period of 20 years for an offence of murder. Section 10C(4)(a) provides that a Judge, when accounting for a guilty plea, may have regard to whether any reduction would be disproportionate to the offence or inappropriate in the case of the particular defendant.
The appellant was sentenced to a mandatory sentence of life in prison. The Judge commenced with a notional non-parole period of 35 years which was reduced by approximately 8.6 per cent to 32 years on account of the appellant’s pleas of guilty. The appellant appeals on grounds that the non-parole period is excessive, that the Judge should have applied a greater reduction on account of the guilty pleas and that the Judge placed too much weight on s 10C(4)(a) of the Sentencing Act.
Held per Kourakis CJ (Stanley and Hinton JJ agreeing), dismissing the appeal:
1. The mandatory minimum non-parole period for an offence of murder imposed by s 32(5)(ab) of the Sentencing Act does not have the effect that defendants must receive significantly less than the maximum available reduction for a plea of guilty pursuant to s 10C of the Sentencing Act.
2. The application of that reduction of a non-parole period pursuant to s 10C is discretionary and must be exercised on the facts of each case.
3. Section 10C(4)(a) of the Sentencing Act was enlivened and it was necessary to fix a very substantial non-parole period taking into account the seriousness of the offending, the protection of the community and personal deterrence for the appellant.
4. The non-parole period was not excessive.
Criminal Law Sentencing Act 1988 (SA) 10C, 32, 32A, referred to.
Veen v The Queen (No 2) (1988)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Davey

Details

AGLC: R v Davey [2017] SASCFC 151
Case: [2017] SASCFC 151
Decision Date: 16 November 2017

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by the appellant, R v Davey, before the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Stanley and Hinton JJ. The dispute centred on whether the sentence imposed by the sentencing judge was manifestly excessive.

The court was required to determine whether the sentencing judge had erred in giving significant weight to the protection of the community in imposing the sentence, and whether the non-parole period was excessive. This involved considering the principle of proportionality in sentencing and its interaction with the need to protect society from offenders.

The court reasoned that while the principle of proportionality dictates that a sentence should not be extended beyond what is proportionate to the crime merely to protect society, the protection of society is a material factor in fixing an appropriate sentence. The court referred to the High Court's decision in *Veen v The Queen (No 2)*, which affirmed that it is legitimate to consider an offender's antecedents, dangerous propensity, and the need for condign punishment to deter further offending. The court found that the objective seriousness of the offences, the appellant's antecedents, lack of remorse, and high risk of reoffending all justified giving substantial weight to community protection. The court concluded that the non-parole period was not excessive and that section 10C(4)(a) of the relevant legislation was enlivened, providing good reason not to reduce the non-parole period by the prescribed proportion.

The appeal was dismissed, with all members of the court agreeing with the Chief Justice's reasons.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In addition to the objective seriousness of the three offences, the appellant’s antecedents, his lack of remorse and his high risk of reoffending all bespoke of an unarguable need to give significant weight to the protection of the community in the sentencing process. It was within the sentencing Judge’s discretion to attach ‘great weight’ to the protection of society as a factor within the limits of proportionality. In Veen v The Queen (No 2), the High Court explained:[5]… It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. …The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen [No.1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender: … It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible. …The plea has been heard by the courts of this country, by adopting the principle of proportionality and by having regard to the protection of society as a factor in determining a proportionate sentence. It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society’s protection in determining the sentence calls for a judgment of experience and discernment.[5] Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ.Conclusion This is a case in which a very substantial non-parole period is necessary to reflect the seriousness of the offending, to protect the community and to deter the appellant. Section 10C(4)(a) was enlivened in the circumstances of this case. There was good reason not to reduce the non-parole by close to the prescribed proportion. The non-parole period was not excessive. I would dismiss the appeal. STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice. HINTON J: I agree with the Chief Justice, for the reasons he gives, that the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

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