R v Davey

Case [2006] SASC 177

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DAVEY

[2006] SASC 177

Judgment of The Court of Criminal Appeal

(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)

16 June 2006

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - OTHER MATTERS

Appellant convicted of offences of assault occasioning actual bodily harm, carry an offensive weapon, aggravated robbery and four counts of threaten harm – appellant found mentally unfit to stand trial – ss 269H and 269M(A) of the Criminal Law Consolidation Act 1935 – objective elements admitted – sentencing Judge made a supervision order releasing appellant on licence – s 269O(1) – limiting term of 10 years fixed – s 269O(2) – whether reasons given by sentencing Judge in fixing limiting term adequate – whether limiting term was manifestly excessive in the circumstances – discussion of Part 8A of the Criminal Law Consolidation Act 1935 – discussion of factors to be taken into account in setting limiting term under s 269O(2) – whether sentencing Judge failed to make allowance for admission of objective elements of offence – consideration of relevance of admission of objective elements to fixing of limiting term – appeal allowed – limiting term reduced to 8 years and 6 months.

Criminal Law Consolidation Act 1935 (SA) s 269H, s 269M, s 269O, s 269P, s 269T, s 269W; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A, referred to.
R v Burfield (No 3) [2006] SASC 97; R v Weiss [2005] SASC 338; R v Bartholomaeus [2006] SASC 13; Cameron v The Queen (2002) 209 CLR 339; Thompson v The Queen (2005) 157 A Crim R 385, applied.
Papps v Police (2000) 77 SASR 210; R v T (1999) 75 SASR 235; R v Place (2002) 81 SASR 395; R v Tsiaras [1996] 1 VR 398; Siganto v The Queen (1988) 194 CLR 656; R v Shannon (1979) 21 SASR 442, considered.

R v DAVEY
[2006] SASC 177

Court of Criminal Appeal         Bleby, Gray and Anderson JJ

BLEBY J:

Introduction

  1. The circumstances giving rise to this appeal are adequately described in the reasons for judgment of Gray J.  I will not repeat them.

  2. I agree with Gray J that the reasons given by the trial Judge for fixing the limiting term that he did are inadequate.  Gray J has explained why that is so.  This Court must therefore reach its own conclusion by applying the relevant principles to determine what an appropriate range for the limiting term should be, and then to determine whether the term in fact fixed was manifestly excessive.

  3. The brief reasons are, nevertheless, indicative of error, in that it is apparent that the Judge did not make any allowance for the effective admission by the appellant of the objective elements of the offence.  For reasons which will become apparent, that omission constituted an error.

  4. The general purpose behind the…

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R v Davey [2006] SASC 177
Case
[2006] SASC 177
Decision Date

CaseChat Overview and Summary

In the matter of R v Davey, the appellant was convicted of multiple serious offences including assault occasioning actual bodily harm, carrying an offensive weapon, aggravated robbery, and four counts of threatening harm. The appellant was found mentally unfit to stand trial under sections 269H and 269M(A) of the Criminal Law Consolidation Act 1935. Despite the appellant's mental unfitness, the objective elements of the offences were admitted. The sentencing Judge made a supervision order releasing the appellant on licence under section 269O(1) of the Act, with a limiting term of 10 years set under section 269O(2). The appellant challenged the adequacy of the reasons provided by the sentencing Judge and the appropriateness of the 10-year limiting term, arguing it was manifestly excessive. The appeal questioned whether the Judge considered the appellant’s admission of the objective elements of the offence when setting the limiting term.

The court examined the adequacy of the reasons given by the sentencing Judge, noting that the brief reasons provided were insufficient for the purposes of appeal. The reasons were not coherent, intelligible, or comprehensive enough to allow the appellate court to discern the Judge's reasoning process. The court emphasised that adequate reasons are crucial for the review function of an appellate court, for transparency, and to ensure justice is seen to be done. The court also assessed whether the limiting term was appropriate, taking into account the appellant's cooperation in admitting the objective elements of the offence, which saved the community the expense and time of a trial. The court concluded that the limiting term should reflect a discount for this cooperation, and that the term should be reduced accordingly.

The appeal was allowed, and the limiting term was reduced to eight years and six months, commencing on 27 October 2005. This reduction took into account the appellant's cooperation in admitting the objective elements of the offence and the time spent in custody before the fixing of the limiting term. The court highlighted the importance of considering the admission of objective elements as a pragmatic ground for reducing the limiting term, separate from remorse and contrition. The court's decision underscores the necessity for detailed reasons in sentencing and the relevance of cooperation in setting the appropriate term for the protection of the community and the rights of the appellant.

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 the circumstances it is appropriate to make a reduction of 18 months from the starting point of 11 years. The learned Judge was in error not to do so.Conclusion Having reviewed all the circumstances, I consider that the Judge was correct to fix a starting point for the limiting term of 11 years. However, that starting point should be reduced to nine years and six months on account of the appellant’s conduct in agreeing to the objective elements of the charged offence. A further reduction of 12 months should be made on account of the time spent by the appellant in custody before the fixing of the limiting term. The resultant limiting term of eight years and six months should commence on 27 October 2005, the day on which the Judge fixed the limiting term to commence. The Judge ordered the immediate release of the appellant on licence. That aspect of the Judge’s order has not been the subject of appeal. As earlier pointed out, in the event of the appellant, at the termination of the limiting term, continuing to suffer mental infirmity giving rise to a danger to the community, application can be made for his further detention pursuant to the provisions of the Mental Health Act. This appeal should be allowed for the purposes of reducing the limiting term to a period of eight years and six months. ANDERSON J: In this matter I have had the advantage of reading the draft reasons for judgment of both Bleby and Gray JJ. I agree with both their Honours that the reasons given by the trial Judge as to how the limiting term was fixed are inadequate. I also agree that from the Judge’s reasons it is clear that no allowance was made for the concession made by the appellant relating to the objective elements of the offence. In the circumstances, both their Honours have indicated that any discount is to be limited to the appellant’s cooperation in relation to the aspects of the objective elements of the offence. In particular, the discount should not include any allowance for the aspect of remorse and contrition. The aspect of remorse and contrition is only one ingredient of the discount. The High Court in Siganto v R referred to by Gray J in his reasons, speaks of the aspect of cooperation as the “pragmatic ground”, that is, the community being spared the expense and time of a trial. When that aspect is isolated from the other factors including remorse and contrition and a willingness to facilitate the course of justice, I think that in the circumstances of this case it is accurately reflected by a reduction of 18 months. I therefore agree that a limiting term of eight years and six months should be fixed, and that that term should commence on 27 October 2005.

Ratio Decidendi

Legal Principle Established

This appeal is a challenge to the length of the limiting term fixed by the Judge. The appellant contends that the Judge erred in failing to give reasons for the length of the limiting term imposed; that the Judge erred in failing to consider the reduction available for agreeing the objective elements of the offences, thereby avoiding the need for trial of fact in relation to those elements and that the limiting term was manifestly excessive.Consideration of the issues on appealAdequacy of Reasons The brief reasons given by the Judge have given rise to difficulty on the hearing of this appeal. Counsel for the appellant, in an attempt to discern the Judge’s process of reasoning, drew the court’s attention to the transcript of proceedings, where the Judge discussed various approaches with counsel in relation to the fixing of the limiting term. However, interchange with counsel during submissions is not an adequate substitute for reasons. Any tentative reasoning that may be disclosed may change. The transcript of submissions is an unreliable source for discerning the Judge’s reasons for fixing the limiting term. The transcript allows speculation and little more. One purpose for the provision of reasons is to allow an appellate court to perform its function of review. Another is to allow a person, the subject of an order, the opportunity to understand the reasons for any loss of liberty. Yet another reason is to allow public transparency for the orders made. The victims of the appellant’s conduct are entitled to know the reasons for the Judge’s order. In Papps v Police, it was observed:[18] [18] Papps v Police (2000) 77 SASR 210 at 218-219 (footnotes omitted). The courts have encountered difficulty in articulating a test to determine whether or not reasons are adequate. Much must depend upon the circumstances of each case. As was said in Lawson v Lee, the reasons must be “coherent, intelligible and comprehensive”. But there is more. The reasons must be adequate to allow an appellate court to perform its function and they must be such that justice is seen to be done. As was said in Sun Alliance Insurance Ltd v Massoud:“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or(b)justice is not seen to have been done.The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected. In the present case, the limiting term related to offences alleged to have been committed in February 2001, September 2004 and October 2004. The conduct in February 2001 and September 2004 neither bore relation to each other nor to the conduct the subject of the alleged offences committed in October 2004. However, the five offences alleged to have been committed in October 2004 can be seen as part of an ongoing course of conduct.