SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DOOLAN
[2017] SASCFC 80
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
11 July 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - INTELLECTUALLY HANDICAPPED OFFENDER
Appeal against sentence. The appellant was found guilty of 11 offences: five counts of aggravated robbery, two counts of attempted aggravated robbery and single counts of aggravated assault causing harm, aggravated recklessly causing serious harm, aggravated serious criminal trespass in a place of residence and theft. The offences were committed during a single 12 hour period. A psychological report indicated that the appellant had an intellectual disability of mild severity.
The sentencing Judge imposed a single sentence of sixteen years and eight months imprisonment, and a non-parole period of eight years and two months.
On appeal, the appellant contended that the sentence imposed was manifestly excessive.
Held per Nicholson J (Kourakis CJ and Parker J agreeing), allowing the appeal:
1. Given the circumstances of the appellant’s intellectual disability and the period of time during which the offending took place, the appellant’s moral culpability should be regarded as less than would be the case had he a better capacity to reason logically and act rationally.
2. The retributive and punishment aspects which inform the sentence must be moderated in light of the appellant’s reduced moral culpability as must the role of general deterrence.
3. The starting points for the head sentence and the non-parole period were unreasonable and manifestly excessive.
4. Sentence set aside and the appellant resentenced to imprisonment for 13 years and eight months with a non-parole period of six years and six months.
Criminal Law (Sentencing) Act 1988 (SA) s 9C, s 18A; Criminal Law Consolidation Act 1935 (SA) s 20, s 23, s 134, s 137, s 270A, referred to.
R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 398; R v Bagnato [2011] SASCFC 161, (2011) 112 SASR 39; R v Roberts [2016] SASCFC 41, (2016) 125 SASR 40; House v The King [1936] HCA 40, (1936) 155 CLR 499; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Lutze [2014] SASCFC 134, (2014) 121 SASR 144; The Queen v Morse (1979) 23 SASR 98; R v Symonds [1999] SASC 217; R v Major (1998) 70 SASR 488; R v Donald, Pitt and Whitaker [2016] SASCFC 117, (2016) 126 SASR 276; Muldrock v The Queen [2011] HCA 39, (2011) 244 CLR 120, considered.
R v DOOLAN
[2017] SASCFC 80Court of Criminal Appeal: Kourakis CJ, Nicholson and Parker JJ
KOURAKIS CJ.
I agree with the reasons of Nicholson J and the orders that his…
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CaseChat Overview and Summary
The central legal issue before the appellate court was whether the sentencing judge had made a specific error material to the sentence imposed, or whether the sentence was unreasonable or plainly unjust, as defined by the principles in *House v The King*. The court was required to determine if the sentence constituted a "process error" or an "outcome error". The appeal was grounded on the assertion of manifest excess, with particulars alleging the sentencing judge failed to give sufficient regard to certain relevant sentencing factors.
The court reiterated that an appellate court should not intervene in a sentence simply because it would have imposed a different one. The focus of the appeal was on whether the sentencing judge had made a specific error of fact or law, or failed to consider a material factor. A mere submission that a factor was not given adequate weight, without demonstrating that no account was taken of it, does not constitute a specific error and is insufficient to enliven the appellate court's jurisdiction to intervene. Such a submission can only form part of an argument for manifest error if the failure to give adequate weight led to a sentence that was unreasonable, plainly unjust, or outside the permissible range.
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
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Ratio Decidendi
Legal Principle Established
Established by: KOURAKIS CJ
Counsel for the Director for Public Prosecutions contended that the head sentence imposed was not manifestly excessive but well within the discretion available to the sentencing Judge and on that basis the non-parole period of the order of 50 per cent of the head sentence could not be said to be manifestly excessive either. Counsel focussed on the undoubted seriousness of the offending and the standards of sentencing customarily observed when dealing with the various offences committed. Counsel emphasised the important sentencing considerations of general deterrence and protection of the community. Counsel for the Director also submitted that insofar as leniency was called for on account of the appellant’s personal circumstances, such typically is accommodated by the fixing of a lenient non-parole period, as occurred here.[11][11] Citing R v Roberts [2016] SASCFC 41; (2016) 125 SASR 40.Consideration The law is clear that on an appeal against sentence it is the task of the appellate court to determine whether the sentencing judge made a specific error material to the sentence imposed or whether the sentence can be characterised as unreasonable or plainly unjust, a process error or an outcome error, respectively, as those notions were explained in House v The King.[12] In the absence of either a process error or an outcome error, an appellate court should not intervene. Specifically, it is not sufficient for an appellate court to intervene simply on the basis that it would have sentenced in a different manner. In Markarian v The Queen,[13] Gleeson CJ, Gummow, Hayne and Callinan JJ observed the following.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”.[citation omitted][12] [1936] HCA 40; (1936) 155 CLR 499.[13] [2005] HCA 25; (2005) 228 CLR 357 at [25]. The ground of appeal in this case is that of manifest excess but a number of particulars in support (as earlier set out) have been relied on. Each of those particulars complains that the Judge failed to pay sufficient regard to or allow sufficient weight with respect to certain factors relevant to sentencing. The various factors referred to are matters to which the Judge was required to have regard and are matters to which an appeal court will have regard when assessing whether or not the sentence formulated is manifestly excessive. However, the fact that an appeal court might place a different level of weight on one or more of these factors will not itself justify allowing an appeal against sentence. In R v Lutze[14] Vanstone and Parker JJ, said this.In Kentwell the High Court again examined the nature of the error sufficient to enliven the jurisdiction of the Court of Criminal Appeal to interfere in a sentence. The plurality judgment of French CJ, Hayne, Bell and Kean JJ echoed the analysis of Hayne J in AB v The Queen ... where his Honour posited the distinction between “specific error” of the types identified in House, as against manifest excess or inadequacy. The same dichotomy was referred to by Kourakis J (as he then was) in R v Horstmann, where his Honour compared “process errors” with “outcome error”.The sort of error referred to as “specific” or “process error” is not merely a perceived failure to give appropriate weight to a particular factor. It is an identifiable error of fact or law, which in all but the rare case will be express. Indeed, it is no part of the task of a sentencing judge to expressly ascribe weight to the myriad factors which inform the sentencing process, that is, the instinctive synthesis referred to by McHugh J in Markarian v The Queen. It is very often impossible to discern the relative weight given to a particular factor; and the exercise is rarely profitable.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”: Kentwell ... set out above.[citations omitted][14] [2014] SASCFC 134; (2014) 121 SASR 144 at [45]-[47].