R v FULCHER - [2007] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FULCHER
[2007] SASC 138
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Sulan)
20 April 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for leave to appeal and appeal against sentence - appellant pleaded guilty to the crimes of aggravated criminal trespass in a place of residence and causing grievous bodily harm with intent to cause grievous bodily harm - appellant sentenced to a head sentence of eight years and six months with a non-parole period of six years - appeal on ground that the head sentence and the non-parole period were manifestly excessive - consideration of sentencing principles - no error of sentencing principle identified - Held: leave to appeal against sentence granted - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
House v R (1936) 55 CLR 499; R v Shrestha (1991) 173 CLR 48, considered.

R v FULCHER
[2007] SASC 138
Court of Criminal Appeal: Doyle CJ, Gray and Sulan JJ

DOYLE CJ: I agree with the reasons given by Gray J. Accordingly, the orders of the court are as follows: 1. That leave to appeal against the sentence be granted. 2. That the appeal be dismissed.
GRAY J:
This is an appeal against sentence.
The appellant pleaded guilty to the offence of aggravated criminal trespass in a place of residence and the offence of causing grievous bodily harm with intent to cause grievous bodily harm. Both offences carried a maximum term of life imprisonment.
The appellant was also charged with the offence of attempted murder. Following his trial, the jury were unable to reach a verdict. The prosecution accepted the appellant’s pleas in respect of the above offences in satisfaction of the information.
The appellant was sentenced on 9 November 2006 to a head sentence of eight years and six months. A non-parole period of six years was fixed.
When sentencing the Judge made a reduction of one-quarter on account of the pleas of guilty, remorse and contrition. A further reduction of six months was made on account of time spent in custody and on home detention bail.
The appeal is brought pursuant to leave against the length of the non-parole period. However, the appellant was refused leave to appeal with respect to the head sentence. The appellant has now sought leave from this Court to challenge the length of the head sentence. The substantive complaint sought to be advanced is that both the head sentence and the non-parole period were manifestly excessive. As both the head sentence and non-parole period together make up the sentence imposed it is appropriate to grant leave.
The offending occurred against a background of a difficult and ongoing custody dispute. In the early hours of 7 February 2005, the appellant went to the home of his former wife and her partner – the victim. Whilst they were asleep in bed, the appellant walked into the home, then into their bedroom. He struck the victim twice to the head with the blunt end of an axe. Children were present in the home.
The victim’s resultant injuries were life threatening. A complex fracture of the skull was sustained. There was bleeding within the brain substance as well as clotting to the surface of the brain. Surgery was necessary. During rehabilitation the victim experienced retrograde and post traumatic amnesia together with cognitive auditory and verbal deficiencies. At the time of sentencing the victim had not fully recovered from the physical and mental impact of the injuries. He had not been able to fully resume his former employment.
The appellant’s offending was very grave. There was a significant need for general deterrence to be reflected in the sentence. A substantial term of imprisonment was called for.
It was appropriate in the circumstances for the sentencing Judge to exercise his powers pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and impose the one sentence for all offending. However it was necessary for the ultimate sentence to reflect adequate punishment for both offences. The overall criminal culpability of the offender needed to be assessed.
At the time of the sentencing the appellant was aged 37 years. He was a first offender. He had an excellent past employment record. His future employment prospects were good. Referees attested to the appellant’s good character.
Two psychiatric reports and a pre-sentence report were tendered before the sentencing judge. The reports detailed matters personal to the appellant. It was concluded that there was no mental illness suffered by the appellant. In short, those reports provided no medical reason for the appellant’s conduct.
An explanation for the appellant’s conduct was outlined by the Judge:
On the night of 7 February I am told that you were clearly at the end of your tether, you were upset at the break up of your marriage, and the fact you no longer had custody of your children. I am told on the evening in question you were attempting to respond to affidavits in relation to Family Court matters that were to take place in the next day or two, that you were in financial difficulties evidenced by the fact that your electricity had been cut off, and you were affected by alcohol. I am told that you then snapped and committed these terrible offences.
The Judge reached the conclusion that he could “feel very confident that nothing like this would happen again”. It was put to the Judge that the appellant had a belief that the victim was mistreating his children. As the Judge observed there was no basis at all for this belief. Evidently, the appellant had earlier reported his concerns to the police and FAYS and to members of parliament. In these circumstances it is relevant to note that in entering the house and attacking the victim, the appellant had taken the law into his own hands.
The Judge when sentencing concluded his remarks with the following pertinent observations:
These background matters, including the amount of alcohol that you had taken, cannot take away from the severity of what happened because your victim was asleep in bed, defenceless, and, despite your state of depression and matrimonial problems, what happened to him was horrific. I bear in mind, however, that you have no previous convictions, you appear to be contrite, and you have pleaded guilty to these offences. However, general deterrence must play a great part in the sentencing process. Where people are faced with emotional problems such as matrimonial break-ups and matters of custody and maintenance they just cannot take matters into their own hands in a violent way, otherwise we would be in chaos.
When addressing the complaint against the length of the head sentence, counsel for the appellant submitted that the gravity of the appellant’s conduct and the need for general deterrence should be weighed in the balance against factors personal to the appellant. It was submitted that there were important mitigating factors relating to the appellant’s prior good record, his good character, work history, his rehabilitation and the unlikelihood of any re-offending. It was submitted that a notional head sentence of 12 years imprisonment before reduction for the pleas was manifestly excessive. It was suggested that the Judge placed too much weight on matters of deterrence and punishment and failed to have proper regard to important mitigating personal circumstances.
The Judge had regard to all relevant circumstances. He did not bring to account any irrelevant circumstance. There was no error of sentencing principle.
The appellant’s criminal conduct was very grave. He entered a domestic residence at night armed with an axe with the intent of causing grievous bodily harm to his victim. He attacked whilst his victim was asleep. The appellant took the law into his own hands in an attempt to address a misconceived grievance. Serious injuries resulted from his criminal conduct. The circumstances of the offending called for a substantial term of imprisonment.
Having regard to the gravity of the appellant’s criminal conduct, the need for general deterrence and the maximum penalties prescribed by Parliament, the head sentence was not manifestly excessive. The sentence imposed by the sentencing Judge was within the range of his sentencing discretion.[1]
[1] House v R (1936) 55 CLR 499.
With respect to the complaint about to the length of the non-parole period, counsel for the appellant pointed out that the non-parole period represented a period of almost 70% of the head sentence. Counsel accepted that the same considerations were relevant to the setting of a head sentence as to the fixing of a non-parole period.[2] However, it was submitted that in the present case the appellant’s rehabilitation carried greater weight when considering the fixing of the non-parole period. Counsel emphasised the judge’s acceptance that the appellant was most unlikely to re-offend and submitted that the Judge had failed to give adequate weight to this consideration. It was suggested that a non-parole period of one half of the head sentence would have been appropriate.
[2] R v Shrestha (1991) 173 CLR 48 at 68-69.
A sentencing judge has a wide discretion when fixing a non-parole period. In exercising the discretion in this case all relevant considerations were addressed by the Judge, no irrelevant matters were had regard to and no error of principle has been identified.[3] Although others may have imposed a shorter non-parole period in the particular circumstances of the present case, it cannot be said that the non-parole period fixed was outside the sentencing discretion of the Judge.
[3] House v R (1936) 55 CLR 499.
The appeal should be dismissed.
SULAN J. I agree.