R v Goulding

[2007] SASC 60

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GOULDING

[2007] SASC 60

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Gray)

2 March 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appeal against sentence - appellant pleaded guilty to the crimes of manslaughter and attempting to pervert the course of justice - sentencing Judge imposed a head sentence of 15 years' imprisonment and a non-parole period of 12 years - whether the head sentence was manifestly excessive - whether the non-parole period was manifestly excessive - Held:  the sentence imposed represented reasonable, proportionate and appropriate punishment - the non-parole period was justified by the circumstances of the case - appeal dismissed.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Dinsdale v The Queen [2000] HCA 54; R v Weinman (1987) 49 SASR 248, considered.

R v GOULDING
[2007] SASC 60

Court of Criminal Appeal:  Doyle CJ, Perry and Gray JJ

1. DOYLE CJ:          I would dismiss the appeal against sentence.  I agree with the reasons given by Gray J.

2. PERRY J. I agree that the appeal should be dismissed for the reasons given by Gray J.

   GRAY J:

3. On 7 September 2006, the appellant, Andrew James Goulding, pleaded guilty to the crimes of manslaughter and attempting to pervert the course of justice.  On 1 June 2005, at Elizabeth Park, the appellant unlawfully killed Shane Francis Casey, and on the same date at Elizabeth Park and other places, he attempted to pervert the course of justice.

4. On 7 November 2006, a Judge of this Court sentenced the appellant pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one penalty with respect to both offences. The learned Judge imposed a head sentence of 15 years’ imprisonment. He fixed a non-parole period of 12 years. The sentence was deemed to have commenced on 7 June 2005, the date on which the appellant was taken into custody.

5. The appeal raised a challenge to the length of the head sentence and the non-parole period.  It was complained that both were manifestly excessive. 

6. The circumstances of the appellant’s criminal conduct were particularly serious.  A dispute had arisen between the deceased, the appellant and one Gardiner.  The dispute related to a quantity of a chemical used in the manufacture of illegal drugs.  The circumstances of the dispute were unclear but suspicions were held, in particular by the appellant, about the deceased having a role in “ripping off” others in relation to the purchase of the ingredient.  Gardiner and two others, Blackwood and Allen went to the victim’s home on 1 June 2005, detained the deceased and drove him to a house at Elizabeth Park where the appellant was waiting. 

7. On arrival the deceased realised that he was in trouble and sought to escape.  He was pursued by the appellant and Gardiner who caught the deceased and subjected him to a horrific beating.  The appellant’s role in the beating included the kicking of the deceased in the face.  At times, Gardiner lifted the deceased’s head so that the appellant could continue to kick the deceased in the body and face.  The assault included, to use the words of the sentencing Judge, a “stomping down on his head and his body”.  At some point, Blackwood sought to intervene and pulled Gardiner away, however, the appellant continued to kick the deceased in the face with great ferocity.  The deceased was rendered semi-conscious as a result of this assault. 

8. The appellant then picked up the deceased and flung him into a motor vehicle, causing the deceased’s head to strike a doorframe with considerable force.  The appellant, with the others and the deceased, drove to the appellant’s home at Elizabeth Grove.  The appellant took the deceased into the house.  The others drove away.

9. The appellant then subjected the deceased to a further beating.  To this end he bound the deceased’s hands behind his back.  The others, when summonsed, returned.  The appellant loaded the deceased into the boot of the vehicle.  At this time the deceased was still alive and his hands were still bound behind his back.  The vehicle was driven to a distant location and the deceased was dumped at the side of the road with his hands bound.  The following day, the deceased was found by a local resident, still alive, and in need of urgent treatment.  He was taken to hospital but died on 7 June 2005.

10. The deceased sustained a cerebral haematoma as the result of the beating and kicking to the head.  A post-mortem revealed extensive and severe brain damage with facial and neck bruising all consistent with repeated striking by a blunt object.  A portion of the small intestine was bruised.  Three ribs were fractured.  It was not possible to say which particular assault led to the death.  The sentencing Judge concluded that it was a combination of both the assault on the roadside and the later assault at the appellant’s home.

11. The appellant’s plea of guilty to manslaughter was accepted by the Director of Public Prosecutions in satisfaction of a charge of murder.  The sentencing Judge took the view that the appellant was the ringleader in the assaults. 

12. As earlier observed, the appellant pleaded guilty to the crime of attempting to pervert the course of justice.  This offence arose from the removal of the deceased from the home of the appellant and his later dumping on the side of the road at a distant location, in order to avoid a link being established between the deceased and the appellant’s home. 

13. At the time of sentencing, the appellant was aged 33 years.  He was born in Adelaide.  The appellant has two dependent children whom he maintains and to whom he has access. 

14. A psychological report was tendered on behalf of the appellant.  That report set out the appellant’s personal background in considerable detail and in particular identified an incident that occurred when the appellant was five years old that had a severe psychological effect upon him.  The incident related to his attempted abduction.  According to the report, the appellant accepted responsibility for his crimes and expressed his remorse to the family of the deceased.

15. The appellant had been using cannabis since about the age of 10 years.  He had been an extremely heavy smoker of that substance.  The appellant commenced amphetamine use when aged 16 years.  At the time of the present offences he was a regular user of methylamphetamines.  Until about 2002 he had had a serious problem with alcohol abuse.  He had criminal antecedents, including an offence of common assault in 1992 that led to a short term of imprisonment.

16. The sentencing Judge took the view that this crime of manslaughter was right at the upper end of seriousness.  The Judge summarised his view in the following terms:

    Your actions in killing the deceased by brutally assaulting him on two separate occasions, the accumulation of which led to his death, are barely short of murder. I can find very few mitigating factors at all in relation to your offending. It was clearly, to an extent, premeditated and vengeful for what you thought was an injustice upon yourself in relation to drugs. It was prolonged, having started at one location, and continued to another. Even then it continued, in the sense that you placed what could only be described as a very ill person into the boot of a car and dumped him on the side of the road.

    The Judge made a “very small discount” for the appellant’s ultimate pleas of guilty.  He did this as he took the view that it was very difficult to see how the appellant would have had any defence to the charge of manslaughter.  The Judge considered that the crime was “very close to murder”. 

17. This is an appeal against the exercise of the Judge’s sentencing discretion.  The complaint advanced by counsel for the appellant was that the sentence was manifestly excessive.  It was not suggested that the Judge made any error of principle, that he had regard to any immaterial considerations or had failed to have regard to any material considerations.[1]  Counsel concentrated his submissions on the length of the non-parole period.  It was pointed out that the non-parole period approximated eighty percent of the head sentence.  It was suggested that this was an unusually lengthy non-parole period and in the circumstances was manifestly excessive.  It was complained that the sentence was so severe that it could be fairly described as manifestly excessive and that as a result some unidentified error must have occurred.

    [1] Dinsdale v The Queen [2000] 202 CLR 321.

18. Counsel for the appellant drew attention to other sentences for the crime of manslaughter and suggested, by comparison, that the present sentence appeared excessive.  A difficulty with this approach is that the facts and circumstances of each of the other offences and the personal circumstances of each of the other offenders differed.  As King CJ observed in Weinman:[2]

    The facts and circumstances of a crime of manslaughter are so varied that it is questionable whether decisions of an appellate court can establish any intelligible standards.

    [2] R vWeinman (1987) 49 SASR 248 at 248.

19. These observations are amply supported by the decisions to which the appellant referred.  A number of these other offences involved a verdict of guilty to manslaughter following a successful defence to murder on the ground of provocation.  In the present case there were no circumstances of provocation.  The killing of the deceased arose in circumstances of a reprisal in regard to a dispute concerning payment for drugs.  One of the authorities referred to by counsel involved a sentence of 15 years and a non-parole period of 12 years.  This sentence was confirmed by the Court of Criminal Appeal.  This demonstrates that the sentence presently under appeal is not unique. 

20. It is to be recalled that the appellant also pleaded guilty to the crime of attempting to pervert the course of justice.  The maximum penalty for that offence is imprisonment for four years.  This too was a serious offence. 

    Conclusion

21. The sentence imposed represented reasonably proportionate and appropriate punishment with respect to the overall criminal conduct of the appellant.  The penalty was not manifestly excessive.  As the sentencing Judge observed, there were few, if any, mitigatory features in the circumstances of the offence.  The personal antecedents of the appellant did not provide any particular explanation for his conduct.  The non-parole period, although for a significant portion of the head sentence, was justified by the circumstances of the case.

22. The appeal should be dismissed.