R v Glover

[2017] SASCFC 56

Supreme Court of South Australia

(Court of Criminal Appeal: Permission to Appeal)

R v GLOVER

[2017] SASCFC 56

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Stanley and The Honourable Auxiliary Justice Chivell)

25 May 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES

CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS

Application for permission to appeal against sentence. Applicant pleaded guilty to dishonestly manipulating an automated teller machine (five counts); contravening a bail agreement (one count); providing false information in an application for release on bail (two counts); serious criminal trespass in a non-residential building (one count); serious criminal trespass in a residential building (five counts); and theft (six counts).

Offences committed in 2006 and 2007. Applicant absconded to New South Wales, then to Western Australia. Applicant continued to offend interstate. Applicant has many previous convictions for similar offending. Applicant had longstanding addiction to methylamphetamine.

Applicant was sentenced to a total of four years 10 months imprisonment, to commence at the expiration of a period of unexpired parole of six months 12 days. A non-parole period of two years was set. Sentence and non-parole to commence on 23 January 2017.

Whether non-parole period manifestly excessive having regard to efforts made by the applicant to rehabilitate himself in custody, his troubled background, the support from his family, his contrition and other factors.

Held per Chivell AJ (Vanstone and Stanley JJ agreeing):  Permission to appeal refused.

Correctional Services Act 1982 (SA) s 75(1)(a); Criminal Law (Sentencing) Act 1988 (SA) s 31(2), s 32(2); Supreme Court Act 1935 (SA) s 48(4); Supreme Court Criminal Rules 2014 (SA) r 120; R v Knipe [2017] SASCFC 34; R v Proom (2003) 85 SASR 120; R v Arnold [2015] SASCFC 13; Bugmy v The Queen (1990) 169 CLR 525; R v Robinson (1979) 22 SASR 367; Power v The Queen (1974) 131 CLR 623; R v Simpson (2001) 53 NSWLR 704; Webb v O'Sullivan [1952] SASR 65; MacGregor v Police (1995) 66 SASR 269, referred to.

R v GLOVER
[2017] SASCFC 56

Court of Criminal Appeal:  Vanstone & Stanley JJ & Chivell AJ

VANSTONE J:  I would refuse permission to appeal for the reasons given by Chivell AJ.

STANLEY J:              I would refuse permission to appeal.  I agree with the reasons of Chivell AJ.

CHIVELL AJ:

1. Mr Glover seeks permission to appeal against a sentence imposed on him in the District Court on 1 March 2017. Permission was refused by Kelly J on 10 April 2017. The application was referred to this Court pursuant to s 48(4) of the Supreme Court Act 1935 and Supreme Court Criminal Rule 120.

2. Mr Glover had pleaded guilty to:

   ·dishonestly manipulating an automated teller machine (five counts) on 17 July 2006. The maximum penalty for that offence is imprisonment for 10 years;

   ·contravening a bail agreement (one count) on 17 July 2006. The maximum penalty for that offence is imprisonment for two years or a fine of $10,000;

   ·providing false information in an application for release on bail (two counts) on 18 July 2006 and 7 September 2006. The maximum penalty for each offence is a fine of $1,250;

   ·serious criminal trespass in a non-residential building (one count) on 26 January 2007. The maximum penalty for that offence is imprisonment for 10 years;

   ·serious criminal trespass in a residential building (five counts) on 8 March 2007, 21 March 2007, 30 March 2007 and 5 April 2007 (2). The maximum penalty for each offence is imprisonment for 15 years;

   ·theft (six counts) on 26 January 2007, 8 March 2007, 21 March 2007, 30 March 2007 and 5 April 2007 (2). The maximum penalty for each offence is imprisonment for 10 years.

3. This offending was not dealt with until 2016 because Mr Glover absconded from South Australia to New South Wales, where his father was seriously unwell. Mr Glover continued to commit serious offences in New South Wales, and then in Western Australia, for which he received various sentences of imprisonment. These sentences resulted in Mr Glover spending over seven years in prison in New South Wales and Western Australia. On his release in Western Australia, he was granted bail by a magistrate to present himself in South Australia so that the outstanding warrants could be executed.

4. Mr Glover received a single sentence of four years and 10 months. The learned sentencing judge indicated that she would have sentenced him to one year and eight months (after a 20% reduction for his pleas of guilty) for the ATM offences, conviction without penalty for the bail offences, and three years and two months (after a 10% reduction) for the serious criminal trespass and theft offences. This sentence was ordered to commence at the expiration of the period of unexpired parole of six months and 12 days, as is required by s 75(1)(a) of the Correctional Services Act 1982 and s 31(2) of the Criminal Law (Sentencing) Act 1988. This led to an overall sentence of five years, four months and 12 days. Her Honour fixed a non-parole period of two years. The non-parole period was set having regard to the total period to be served, as required by s 32(2) of the Criminal Law (Sentencing) Act. Her Honour ordered that the sentence and non-parole period commence on 23 January 2017.

5. The grounds of appeal sought to be advanced are, in summary:

   1.the non-parole period was manifestly excessive;

   2. & 3.the judge failed to give sufficient weight to the prospects for rehabilitation;

   4.the judge erred when she stated in her sentencing remarks that 'there have been times when you have been capable, it seems, of moving past your childhood traumas'.

6. As to grounds 2 and 3, it is well settled that giving less than adequate weight to a matter does not, of itself, enliven the court's discretion to interfere in a sentence. Most recently in R v Knipe,[1] Vanstone J said:

   While particulars (a) and (b) of the ground assert error by the Judge, it is well settled that giving less than adequate weight to a matter does not, of itself, amount to error in the sense of House v King (1936) 55 CLR 499. This was confirmed fairly recently in this Court in R v Lutze (2014) 121 SASR 144.  In that case Parker J and I spoke of the difference, in terms of enlivening the Court’s jurisdiction to interfere in a sentence, between a specific or process error, as against an outcome error.  We said at [46] and [47]:

   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 (2005) 228 CLR 357. 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 at [35] set out above.

   [1] [2017] SASCFC 34 at [17].

7. There is no complaint about the length of the head sentence. Ground 3 acknowledges that 'a head sentence of 5 years, 4 months and 12 days properly reflected the principle of general deterrence'.

8. It is plain from the sentencing judge's remarks that she took into account Mr Glover's prospects for rehabilitation, most obviously by setting a lower than usual non-parole period. In addition, her Honour made specific reference to:

   ·Mr Glover having made his own way to South Australia, having been granted bail after his arrest in Western Australia;[2]

   ·Mr Glover's sister being 'particularly supportive', having offered him work when he is released;[3]

   ·the particularly difficult upbringing experienced by Mr Glover, characterised by domestic violence and sexual abuse;[4]

   ·the rehabilitation programs undertaken by Mr Glover in custody;[5]

   ·the good relationship Mr Glover now has with his daughter;[6]

   ·the good signs being shown by Mr Glover towards rehabilitation as noted by Judge Robertson in the District Court when sentencing him in 2005, and that it was unfortunate that he had been unable to build upon them;[7]

   ·the 20% discount on sentence for Mr Glover's 'pleas and your remorse'.[8]

   [2]    AB 61.

   [3]    AB 61.

   [4]    AB 61.

   [5]    AB 62.

   [6]    AB 62.

   [7]    AB 62.

   [8] AB 62. This discount was not governed by s 10C of the Criminal Law (Sentencing) Act, which applies to offences committed after 13 March 2013. It seems generous in light of the fact that Mr Glover absconded from South Australia and remained at large for about nine years, and continued to offend in other states during that time.

9. Ground 4 was not referred to by Ms Powell QC, counsel for Mr Glover, in her submission to this Court. In her outline of argument, Ms Powell QC submitted that her Honour's observation that there had been times when Mr Glover had been capable of 'moving past your childhood traumas' was unsupported by the evidence, and was somehow a negation or perhaps denial of the consequences of his tragic upbringing.

10. I do not accept that her Honour intended to convey such a thing. On the contrary, it seems to me that her Honour was observing that Mr Glover had shown signs of being able to rehabilitate himself. In other words, her Honour was saying that his childhood traumas had not totally disabled him to the extent that he was incapable of rehabilitation, that he was not, to use the words of counsel for the respondent, Mr Williams, a 'lost cause'.

11. The submission that this statement is indicative of error should be rejected.

12. Ms Powell QC submitted that there are a number of unique aspects to Mr Glover's situation which call for special consideration:

    ·the sexual abuse Mr Glover suffered as a child;

    ·the support Mr Glover has from his family;

    ·the opportunity of employment on his sister's vineyard in Western Australia;

    ·the degree of rehabilitation Mr Glover has achieved in custody, particularly evidenced by his actions in travelling to South Australia in circumstances where he had another opportunity to abscond.[9]

    [9]    Mr Glover was bailed to appear in court in South Australia. The court was told, without objection, that due to bad weather, the aeroplane in which he was travelling was diverted to Melbourne, from where he could easily have 'disappeared'.

13. Regrettably, none of these factors is unique, nor is the combination of them unique. The last factor is unusual, but only in the sense that it was unusually generous to Mr Glover, having regard to his record of absconding. An extradition in custody would have seemed a more likely outcome at that time.

14. Mr Glover had many previous convictions for similarly serious offending when he committed these offences in 2006 and 2007. The chronology of his offending and resultant sentencing is complex because he has absconded on bail on multiple occasions.

15. For example, some serious offending in 2002 in New South Wales was dealt with in 2003, other such offending was not dealt with until 2008 because Mr Glover returned to Western Australia. He returned to New South Wales after he absconded from South Australia in 2008. Other serious offending in Western Australia in 2003 was not dealt with until 2013, when he returned there from New South Wales. As already mentioned, this offending in South Australia in 2006/07 was not dealt with until 2016 because Mr Glover absconded in 2008.

16. Mr Glover has many convictions for offences as serious, if not more serious, than those being dealt with by the sentencing judge. There was an obvious need for personal and general deterrence of such crimes. It is no answer to say that the crimes were committed to fund drug addiction.[10]

    [10]   R v Proom (2003) 85 SASR 120 per Doyle CJ at [43].

17. Ms Powell QC submitted that the objects of general and personal deterrence are met by the substantial head sentence and that an exceptionally low non-parole period was justified by the factors outlined above. This submission suggests that issues of general and personal deterrence are, if not irrelevant, less relevant to the setting of the non-parole period.

18. In R v Arnold[11] Duggan AJ, with whom Parker J agreed, referred to the judgment of the High Court in Bugmy v The Queen,[12] which approved the approach adopted by King CJ to the setting of a non-parole period in R v Robinson:[13]

    [T]he minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole.

    [11] [2015] SASCFC 13.

    [12] (1990) 169 CLR 525.

    [13] (1979) 22 SASR 367 at 370.

19. In Bugmy, Mason CJ and McHugh J said:[14]

    It has been said that “(t)he intention of the legislature is that a minimum term is a benefit to the prisoner”: Iddon & Crocker v.  The Queen (1987) 32 A Crim R 315, at pp 325-326; and so it is. The effect of fixing a minimum term is that the Parole Board may thereafter, in the exercise of its discretion, grant parole: Corrections Act 1986 (Vict.), s. 74(1); Community Welfare Services Act 1970 (Vict.), s. 195(1), since repealed.  But that does not mean that the sentencing judge, in fixing the minimum term, approaches the task on the footing that he or she is solely or primarily concerned with the prisoner's prospects of rehabilitation.  Power v. The Queen (1974) 131 CLR 623 put paid to that notion. Barwick C.J., Menzies, Stephen and Mason JJ observed. (at p. 628):

    “In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention.”

    [14] (1990) 169 CLR 525 at 530-31, quoted in Arnold at [45].

20. In Power v The Queen,[15] Barwick CJ, Menzies, Stephen and Mason JJ said:[16]

    Nor do we understand how it is said that the fixing of a non-parole period is not concerned with deterring either the prisoner himself or others from crime.  Surely the requirement that a prisoner must stay in confinement for some period seen by a judge to be appropriate in all circumstances, would operate more as a deterrent than to allow the prison gates to be opened almost as soon as they have closed, that is, when the paroling authority has had time to consider whether the sentence should be served in confinement.  To the extent to which deterrence is an object of imprisonment, then imprisonment without a chance of release for a longer time, rather than for a shorter time, is within that objective.

    [15] (1974) 131 CLR 623 at 628.

    [16]   Quoted in Arnold at [46].

21. In R v Simpson,[17] the New South Wales Court of Criminal Appeal said:[18]

    Counsel for the applicant, submitted that considerations of general deterrence are of greater significance for setting a head sentence than for determining a non-parole period.  He referred to Bugmy v The Queen (supra) at 531-532. I can see nothing in the High Court's reasons in Bugmy which supports that submission.  Considerations of general deterrence are at least equally significant to both decisions which are, in any event, interrelated.  Indeed the purport of the High Court’s decision in Power was to reject the proposition that considerations of punishment and deterrence were of primary relevance to the determination of the head sentence and of lesser relevance to the specification of the non-parole period.

    [17] (2001) 53 NSWLR 704.

    [18]   Per Spigelman CJ, with whom Mason P, Grove J and Newman AJ agreed, at 718 - quoted in Arnold at [47].

22. In Arnold, Duggan AJ concluded, at [48]:

    In my view, the sentencing Judge was correct in observing that deterrence must still play a part in the fixing of the non-parole period. 

23. In this case, the non-parole period set was about 37% of the head sentence plus the balance of unexpired parole. When the period of unexpired parole is excluded, it represents 30% of the head sentence.

24. In her written outline, Ms Powell QC quoted the well-known observation of Napier J in Webb v O'Sullivan:[19]

    The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.

    (See also the remarks of Debelle J in MacGregor v Police.[20])

    [19] [1952] SASR 65 at 66.

    [20] (1995) 66 SASR 269 at 271.

25. The fixing of a non-parole period which is 30% of the head sentence and 37% of the total sentence is, in my view, leaning towards mercy.

26. In light of Mr Glover's antecedents and the seriousness of these offences, it is not reasonably arguable that the non-parole period fixed was manifestly excessive. In the absence of 'process error', the other grounds of appeal are not reasonably arguable either.

27. I would refuse permission to appeal.