R v Galer - [2007] SASC 455

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GALER
[2007] SASC 455
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Vanstone)
20 December 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - FACTUAL BASIS FOR SENTENCE
Appellant pleaded guilty to assault occasioning actual bodily harm - sentenced to twelve months imprisonment with a non-parole period of six months - whether factual basis for sentence contained error - consideration of correct approach where factual basis put differs from depositions - incorrect information as to juvenile co-offender's sentence put to judge - whether sentence should have been suspended. Held: Judge entitled to act on basis of depositions; misinformation unlikely to have affected sentence; open to judge not to find good reason to suspend; even if sentencing discretion were to be exercised afresh, good reason would not be found; appeal dismissed.
R v Perre (1986) 41 SASR 105; The Queen v Homer (1976) 13 SASR 377; The Queen v S (a child), V (a child) and Nates (1982) 31 SASR 263; The Queen v McInerney (1986) 42 SASR 111; R v Malesevic (1999) 204 LSJS 32; Griffiths v The Queen (1977) 137 CLR 293, applied.
R v Nemer (2003) 87 SASR 168, considered.

R v GALER
[2007] SASC 455
Court of Criminal Appeal: Duggan, Bleby and Vanstone JJ

DUGGAN J. In my view the appeal should be dismissed.
Subject to the qualification expressed by Bleby J in his reasons, I agree with the reasons prepared by Vanstone J.
BLEBY J. I agree that the appeal should be dismissed. With one qualification I agree with the reasons of Vanstone J.
The qualification relates to the information that was given to the Judge about the sentence imposed on the co-offender. The only information apparently given to the Judge was that for the offences to which he had pleaded guilty (robbery and assault occasioning actual bodily harm) he had been convicted and ordered to serve a six-month period of detention. The information was incorrect, as the Judge was not told that the period of detention had been suspended. No other information was given as to the basis of the co-offender’s plea in the Youth Court or concerning his personal circumstances or background. The Judge was not supplied with a copy of the sentencing remarks.
I agree that for those reasons and because the regime for the sentencing of youths is so different, it would be surprising if the Judge placed any weight at all on the information he was given. However, I cannot be sure that he did not do so, particularly when considering the question of suspension of the sentence to which the Judge gave “anxious consideration”. However, if it were necessary for this Court to exercise the sentencing discretion with the correct information as to the sentence imposed by the Youth Court, I would reach the same decision as the sentencing Judge did because of the factors mentioned above.
VANSTONE J: Shane Rodney Galer appeals against a sentence imposed in the District Court after a plea of guilty to assault occasioning actual bodily harm. The learned sentencing judge imposed an immediate sentence of twelve months imprisonment with a non-parole period of six months. The primary ground of appeal is that the judge erred in not suspending the sentence. The appellant also complains that the factual basis for the sentence was not in accord with the submissions made to the judge.
Background
The appellant was 21 years of age at the time of the offence, which was an assault upon a 14 year old boy.
In the afternoon of 11 August 2005 the appellant was a passenger in a car with three other young men, driving along South Road. At the same time, the victim was walking along South Road towards a bus stop, intending to catch a bus home. As the vehicle passed the victim, one of the appellant’s group yelled abuse at him. The victim ignored the yelling and continued to the bus stop. The driver then stopped the car. The appellant and one of his friends alighted, crossed the road and confronted the victim.
In his statement the victim identified two male attackers. He said male 1 started the assault, punching him several times. Male 1 demanded the victim’s watch and wallet and then grasped his watch, trying to remove it. He said male 1 punched him again and then made contact with the face of his watch, smashing the glass. There were further blows by male 1. Then male 2 (who was clearly the appellant) warned male 1 that they should leave. The victim said that male 2 then “grabbed hold of the top of the southern end of the bus shelter, raised his body off the ground and kicked [him] in the right shoulder through the open space of the bus shelter.” It appears that the victim remained seated throughout the incident.
Two eye-witnesses, who were acquaintances of the victim, confirmed that the appellant kicked at the victim.
The victim suffered bruising to his face and a cut to his cheek requiring sutures.
Proceedings in the District Court
The appellant was first arraigned in the District Court on 3 April 2006. He pleaded not guilty to the charge now under consideration, as well as to attempted aggravated robbery. Upon his plea of guilty to the assault charge in May 2007, a nolle prosequi was entered in relation to the more serious charge.
In submissions before the judge, counsel for the appellant ultimately put that the appellant’s involvement consisted of the victim hitting at the appellant with his watch hand and the appellant striking back. It was submitted that the appellant returned to the vehicle with a cut hand, sustained from contact with the victim’s watch. Indeed his DNA was found on that watch.
In the sentencing submissions it was not immediately made clear to the judge that this was the basis of the plea of guilty. Indeed that emerged in the course of a reply made by the prosecutor, after the appellant’s counsel had completed his submissions. It became apparent at that point that the prosecution was content for sentence to be imposed on the basis of either a kick or a punch. Prosecuting counsel advised the judge that although she relied on the victim’s statement, she accepted that the only act of violence by the appellant was “either a kick or a punch to [the victim] at the tail end of the offending”. It was at that point that the appellant’s counsel put to the judge that the appellant had struck back at the victim when he thought that the victim was hitting at him with his watch hand. He said that his instructions were that male 1 had done the kicking. The judge was left to assimilate these submissions with the depositions.
On a different topic, it is now acknowledged on both sides that an error was made in the course of sentencing submissions, relating to the disposition of the co-offender, referred to here as “male 1”. The judge was advised by the prosecutor that the co-offender had pleaded guilty in the Youth Court to charges of assault occasioning actual bodily harm and robbery and had been ordered to serve a six month period of detention. It is now agreed that the term of detention was in fact suspended. It does not appear that any information as to the co-offender’s personal details was placed before the judge.
In his sentencing remarks the judge found that the appellant had kicked the victim and appears to have contemplated the possibility of more than one blow by the appellant. He said:
…you took hold of the roof of the bus shelter and kicked out at [the victim], striking him with your foot in his right shoulder. There is also a suggestion in the papers of more physical action between you and the boy, because your DNA was found on the boy’s broken watch, and you did have a cut hand.
The judge expressed the view that the offending was “unprovoked, cowardly, gang street violence, [both] alarming and prevalent”. General deterrence was a paramount consideration. In considering whether there was good reason to suspend the sentence, the judge found the offending was “too serious”.
Factual basis of sentence
I deal first with the factual basis upon which the sentence was imposed. In the final analysis there was a clear conflict between defence counsel’s submissions and the depositions. The prosecutor, whilst not abandoning the depositions, seemed to take a view which accommodated defence counsel’s stance.
It is implicit in the argument of the appellant in this court that in the state of the submissions the judge was obliged to act on the version most favourable to the appellant. I do not agree that is so. In R v Perre (1986) 41 SASR 105, 105-107, King CJ discussed the role and obligations of counsel and the judge in situations where there is a dispute about the basis upon which sentence should be imposed. Although Prior J wrote a separate judgment in that case (forming the majority with King CJ) his Honour’s reasons are essentially consistent with those of the former Chief Justice. The statements of King CJ have been taken to express the law applicable to this situation in subsequent cases including, for example, R v Nemer (2003) 87 SASR 168.
The discussion of King CJ in Perre’s case is directed primarily to the question of inferences to be drawn from the facts as established in the depositions. But it extends to an issue about the primary facts. In that regard King CJ said (at 106), the following:
Even in the cases in which the prosecution joins with the defence in asking for sentence to be imposed upon an agreed basis which differs from the depositions or from inferences which the judge may be disposed to draw from the depositions, it is for the judge to decide whether he is prepared to act upon that agreed basis.
The former Chief Justice went on to observe that the decision as to whether evidence should be called by defence counsel in relation to the disputed fact or inference was for counsel and that it was not part of the “ordinary role of the judge” to indicate his position in relation to that matter of fact or inference.
Here, defence counsel did not indicate at any time that he was prepared to call his client to prove his version of a single punch. Nor did the prosecutor abandon the victim’s statement and the statements of those witnesses who corroborated the assertion that male 2 kicked the victim. However the prosecutor did, in effect, indicate a preparedness to entertain defence counsel’s submissions. That stance was not very helpful since on the depositions the issue was crystal clear. The result was that the way this matter was presented to the judge had much in common with the unfortunate sequence of events which took place before the sentencing judge in Nemer’s case, where the factual dispute and the way it stood in relation to the depositions was obscured, rather than clarified by counsel.
I consider that the judge was correct to act upon the clear version of events which was established by the depositions. If both counsel wished him to abandon the depositions and to substitute some other view of the facts, then there should have been an explicit request and, ideally, a new statement of agreed facts provided, coupled with, at least, an indication of a preparedness on the part of the appellant to give evidence in support of his version. None of this occurred. As I said, in my view the judge was correct to proceed as he did. The appellant has no grounds for complaint about what occurred.
I would add this though. Inasmuch as the incident was plainly a joint enterprise between both males to assault the victim and the violence offered by the appellant was the culmination of a series of blows by male 1, the precise role played by the appellant might not have been the most important aspect of the matter. In the end, the observations about the incident made by the sentencing judge were absolutely warranted, irrespective of the nature of the blow contributed by the appellant.
In summary then, while I do not consider that any error was made by the sentencing judge in adhering to the facts as established by the depositions, I do not entertain the possibility that the sentence would have been any different if imposed on the basis of the appellant’s version.
I turn to the acknowledged misinformation concerning the fate of the co-offender. As I mentioned, he was convicted for robbery as well as the assault. In his sentencing remarks the judge repeated the information he had been given without comment. Without being informed of the co-offender’s age, antecedents or indeed the basis upon which he pleaded guilty and without the sentencing remarks of the judge who dealt with him in the Youth Court, it would be very difficult to make any use of the information at all.
Further, because of the different legislative provisions which govern sentencing of youths there can be no true parity as between youths and adults, even where they are sentenced for the same offence: The Queen v Homer (1976) 13 SASR 377; The Queen v S (a child), V (a child) and Nates (1982) 31 SASR 263 per King CJ at 267 and per Zelling J at 268. In any event, when it comes to whether a sentence is to be suspended personal factors become more critical. For these reasons it would have been surprising if the judge placed any weight on the little he was told about the co-offender’s disposition. I am satisfied that the incorrect information had no impact on the appellant’s sentence.
Question of suspension
The appellant was 21 at the time of the offending and is now 23 years old. He was educated to year 10, after which he was employed in various positions on an intermittent basis. He is blind in one eye which, counsel submitted, has affected his schooling and his ability to gain and hold employment. He also has some mental health problems, primarily relating to his ability to manage anger.
The appellant has some history of offending, including two common assaults (in circumstances broadly similar to the present offending) and two counts of theft, all committed in July 2004, some time before this offence. The present offence was committed while the appellant was on bail for all those charges. That is a relevant factor, although I acknowledge that the assaults were not prior convictions as such: The Queen v McInerney (1986) 42 SASR 111, 112-3.
I have already set out the sentencing judge’s characterisation of this offence. I agree with it. I consider that the decision whether to suspend the sentence was fairly open to the sentencing judge.
Reference was made in argument to the fact that the appellant had been on home detention bail for a long period prior to sentence and had also spent a week in custody prior to being given bail. The judge referred to those matters in the context of fixing the head sentence and non-parole period. In my view if they were to be given weight – which was a matter for the judge’s discretion: R v Malesevic (1999) 204 LSJS 32 – then it was primarily in fixing the length of the sentence and non-parole period where they would count. In fact a discount of 25 per cent was allowed, to reflect those periods and the very late plea of guilty. In my opinion no complaint about that discount can properly be made. Moreover the relevance of the bail terms to the issue of suspension was at best marginal.
I consider it is impossible for this court to say that the judge must have found good reason to suspend the sentence. As Barwick CJ said in Griffiths v The Queen (1977) 137 CLR 293, 308-310, whether appeals against sentence are brought by defendants or prosecuting authorities the principle guiding the court of appeal is the same. In the absence of error or misuse of a sentencing judge’s discretion, his (or her) considered disposition of a matter is entitled to weight. His Honour observed (at 310): “[T]he views of those whose daily, or almost daily, task is the sentencing of prisoners must command respect.”
Conclusion
The only error of fact attending the sentencing process arose from inaccurate information given the judge as to the disposition of the co-offender, a youth. It was not material.
It was open to the judge to take the view that there was no good reason to suspend the sentence. I would dismiss the appeal.