R v Galffy - [2009] SASC 261

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GALFFY
[2009] SASC 261
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Kelly)
1 September 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
Application by Director of Public Prosecutions for permission to appeal against sentence – respondent pleaded guilty to aggravated recklessly causing serious harm by kicking his three year old son – sentenced to two years, five months and three weeks imprisonment with 18 months non-parole, suspended – consideration of circumstances in which appeal Court should grant leave to the Crown to appeal against sentence – whether Judge erred in suspending term of imprisonment – whether gravity of offence and considerations of general and personal deterrence called for immediate term of imprisonment – respondent had previously received suspended sentences – consideration of respondent's steps toward rehabilitation.
Permission to appeal refused (by Doyle CJ and Bleby J, Kelly J dissenting).
Criminal Law Consolidation Act 1935 (SA) s 14, s 21, s 23; Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
R v Osenkowski (1982) 30 SASR 212; Elliott v Harris (No 2) (1976) 13 SASR 516; WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147, discussed.
Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Partridge (2008) 102 SASR 233; R v McInerney (1986) 42 SASR 111, considered.

R v GALFFY
[2009] SASC 261
Court of Criminal Appeal: Doyle CJ, Bleby and Kelly JJ

DOYLE CJ: I have had the benefit of considering the reasons of Bleby J and Kelly J.
I would grant permission to appeal against the sentence imposed by the District Court. It is reasonably arguable that the Judge has erred. The circumstances of the case are such that the sentence warrants consideration by the Full Court.
If permission to appeal is granted, it is then necessary to decide whether the Judge has erred, and whether the case is one that calls for intervention on an appeal against sentence by the Director of Public Prosecutions, consistent with the decisions holding that this Court should interfere only in limited circumstances, and not simply because an error has been made.
This is a difficult case. Bleby J has identified the circumstances that support the approach taken by the District Court Judge. Of particular significance, in my opinion, is the circumstance that as a result of the intervention by Families SA, substantial progress has been made in bringing about a change and rehabilitation on the part of Mr Galffy. There is good reason to think that rehabilitation will be achieved, and that the family can be kept together.…

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 Galffy

Details

AGLC: R v Galffy [2009] SASC 261
Case: [2009] SASC 261
Decision Date: 1 September 2009

CaseChat Overview and Summary

The case of R v Galffy involved an appeal by the Director of Public Prosecutions (DPP) against a sentence imposed on the respondent, who had pleaded guilty to the offence of aggravated recklessly causing serious harm to his three-year-old son. The respondent was sentenced to two years, five months, and three weeks imprisonment, with the sentence suspended on the condition that the respondent enter into a bond to be of good behaviour for a period of three years. The DPP sought permission to appeal on the grounds that the sentence was manifestly inadequate and that the sentencing Judge had erred in suspending the sentence. The appeal centred on whether the Judge was correct in suspending the sentence and whether the gravity of the offence and considerations of general and personal deterrence required an immediate term of imprisonment.

The legal issues before the court were whether the sentencing Judge had erred in exercising his discretion to suspend the sentence and whether the suspended sentence was appropriate given the nature and circumstances of the offence. The court had to consider the principles applied by appellate courts in relation to Crown appeals against sentence, the purpose of the sentence, and the need for general and personal deterrence. The court also needed to weigh the respondent’s steps toward rehabilitation against the severity of the offence and the need to protect vulnerable individuals in the community.

The court determined that the sentencing Judge was within his discretion to suspend the sentence, given the circumstances of the case. The offence was an isolated incident, not premeditated, and there was no history of abuse. The court noted that the respondent had taken steps toward rehabilitation and had accepted responsibility for his actions. The Judge had imposed conditions on the bond to ensure compliance with ongoing programs and to remove the respondent from the family if there were any signs of recurring abuse. The court found that these measures provided adequate mechanisms to protect the child and that the suspension of the sentence did not amount to an error justifying interference by the appellate court. Therefore, the application for leave to appeal by the DPP was dismissed.

In conclusion, the court upheld the decision of the sentencing Judge to suspend the sentence and found no error in the Judge’s exercise of discretion. The court emphasised the importance of considering the circumstances of the offence, the need for rehabilitation, and the mechanisms in place to protect the victim. The court dismissed the DPP’s application for leave to appeal, affirming the appropriateness of the sentence in the given context.

Orders

Orders of the court

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Background

Background to the litigation

The DPP sought permission to appeal on two grounds. The first was that the sentencing Judge erred in the exercise of his discretion to suspend the sentence. The second was that both the head sentence and the non-parole period were manifestly inadequate. At the hearing of the appeal the Director abandoned the second ground. The only remaining question was therefore the suspension of the sentence.The facts On 25 October 2006 the respondent was living with his wife and two children in the family home. Early in the evening the respondent’s wife had gone shopping for some food. During her absence of about 15 minutes there was a knock on the front door. The respondent’s 31/2 year old son, Kodi, was curious to find out who was there. He was pushed away several times by the respondent who feared that there might be unwelcome strangers at the door. Although there was some confusion as to precisely what happened, it now seems reasonably clear, and the sentencing Judge found, that on the last occasion the respondent kicked Kodi with substantial force. Although it was not immediately apparent, the child suffered a lacerated liver and fluid in the abdomen. His injuries were, for a time, life-threatening. When the respondent’s wife returned she noticed that Kodi was pale and had tears running down his face. His condition deteriorated and he lapsed into unconsciousness. Both parents then took him to the nearest hospital from whence he was removed to the Women’s and Children’s Hospital for emergency treatment. The respondent initially told his wife that Kodi had fallen over. He told the treating doctor that he had pushed Kodi, causing him to fall to the ground. He later suggested that Kodi must have fallen on some sharp object. In short, the respondent was less than forthcoming about precisely what had happened. It was only some time after his arraignment and before sentencing submissions were made that the respondent came to acknowledge his full responsibility for the incident. It will be necessary to return to that aspect later in these reasons. The sentencing Judge found that the objective circumstances of the offence suggested that the respondent “unjustifiably overreacted to a very minor situation which exhibits an appreciable lack of self-control”. The incident did not form part of a protracted course of conduct. It was an isolated incident, brief in nature and not sustained. It was not premeditated, having arisen from a reactive and sudden loss of self-control. The prosecution did not allege a history of abuse.The DPP’s appeal The Director submitted that there were six elements which, when combined, required that there be an immediate custodial penalty. Those six elements were:1The nature of the offence itself;2The features that surrounded its commission;3The conduct of the respondent after its commission;4The seriousness of the offence as evidenced by the penalty imposed by Parliament;5The need for sentences which unequivocally include significant elements of personal and general deterrence; and6The clear responsibility of the Court to protect the most vulnerable people in the community.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLEBY J

The Judge recognised that that could be fulfilled by placing adequate mechanisms in place to ensure that there would be compliance with necessary ongoing programs, while providing for the respondent’s immediate removal from the family if there were any sign of recurring abuse. Those mechanisms were appropriately put in place by the conditions of the bond, the acceptance of which by the respondent was a condition of his release. The suspended sentence provides a powerful incentive to ensure that that process is completed.Conclusion In all these circumstances it was within the sentencing Judge’s discretion to take the merciful and constructive course that he did. The suspension of the sentence in the rather unusual circumstances did not amount to an error justifying interference by this Court on an appeal by the DPP. I would dismiss the application for leave to appeal by the DPP.KELLY J:Introduction The Director of Public Prosecutions has applied for permission to appeal against a sentence imposed in the District Court on 22 April 2009. On 29 January 2008 the respondent pleaded guilty to the offence of aggravated recklessly causing serious harm contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for that offence is a term of imprisonment of nineteen years. The respondent was sentenced to a term of imprisonment of two years, five months and three weeks. The Judge fixed a non-parole period of eighteen months and suspended the sentence on the respondent agreeing to enter into a bond to be of good behaviour for a period of three years. The Director sought permission to appeal on the grounds that the head sentence and non-parole period are manifestly inadequate and that the sentencing Judge erred in the exercise of his discretion to suspend the sentence. At the hearing the Director abandoned the first ground. Background The offence was committed on the evening of 25 October 2006. The victim, a three-year-old child, is the son of the respondent and was in the sole care of the respondent on the evening when this offence occurred. The respondent’s wife left the house briefly and it was during her absence of approximately fifteen minutes that the offence occurred. There was a knock on the front door and the three-year-old victim went to the door curious to find out who was there. He was pushed away by the respondent and subsequently kicked by the respondent with sufficient force to cause a very serious injury to the child’s liver. The injury was potentially life threatening. The child was admitted to the high dependency ward of the Women’s and Children’s Hospital the same evening as CT scans revealed an acute liver laceration with widespread bleeding throughout the abdomen. A significant drop in the child’s haemoglobin levels was attributed to recent blood loss prior to the child’s admission to hospital. At the time of admission it was reported that the child was vomiting, had abdominal pain, was unable to stand, was pale, his hands were cold and his blood pressure was low. The child’s mother reported that upon her return to the house that evening the child was in such a serious condition that he was lapsing in and out of consciousness as she changed his nappy. The child remained in the hospital for over a week while doctors monitored internal bleeding in order to minimise any further blood loss.

Ratio Decidendi

Legal Principle Established

Established by: BLEBY J

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