R v GRENFELL - [2015] SASCFC 134

Supreme Court of South Australia
(Court of Criminal Appeal)
R v GRENFELL
[2015] SASCFC 134
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)
17 September 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - SENTENCING METHODS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - CONTRITION
Appeal against sentence. The appellant was sentenced to a period of five years imprisonment with a non-parole period of three years for two sets of violent aggravated assaults.
The appellant appeals on the basis that the head sentence and non-parole period imposed are manifestly excessive. Appeal dismissed.
Held by David AJ (Vanstone and Kelly JJ agreeing) (dismissing the appeal):
1. The head sentence imposed was not manifestly excessive.
2. The sentencing Judge did not err in fixing the non-parole period.
Criminal Law Consolidation Act 1935 (SA) s 20(3), s 20(4), s 24(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

R v GRENFELL
[2015] SASCFC 134
Court of Criminal Appeal: Vanstone and Kelly JJ and David AJ

VANSTONE J: I would dismiss the appeal. I agree with the reasons of David AJ.
KELLY J: I would dismiss the appeal. I agree with the reasons of David AJ.
DAVID AJ: This is an appeal against sentence. The appellant pleaded guilty to one count of aggravated causing harm with intent, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act), and one count of aggravated assault, contrary to s 20(3) of the Act. Both of these offences were committed on 5 October 2014. The maximum penalty for the offence of aggravated causing harm with intent is 13 years imprisonment. The maximum penalty for the charge of aggravated assault is three years imprisonment.
I will refer to these two charges as “the October offences”.
On a separate information, the appellant also pleaded guilty to two counts of aggravated assault, contrary to s 20(3) of the Act, and two counts of aggravated assault causing harm, contrary to s 20(4) of the Act. These offences were committed on 10 March 2014. The maximum penalty for offences against s 20(4) of the Act is four years imprisonment.
I will refer to these four offences as “the March offences”.
All of these matters came before a District Court judge for sentencing. He imposed the following sentences:
(a)for the October offences, using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), he imposed a head sentence of three years and nine months, after allowing a discount of 30 per cent for pleas of guilty;
(b)for the March offences, also pursuant to s 18A of the Sentencing Act, he imposed a head sentence of two years and three months, after allowing a discount of 30 per cent to allow for the pleas of guilty on those matters.
He ordered that the sentences be served cumulatively, coming to a total head sentence of six years imprisonment. He reduced that period by 12 months to allow for matters personal to the appellant (about which there was no argument), leaving a final head sentence of five years imprisonment. At that stage of his sentence, the sentencing judge considered the question of totality and ruled that any further reduction pursuant to that principle was inappropriate. He set a non-parole period of three years imprisonment.
The appellant now appeals against the severity of both the head sentence and the non-parole period, claiming that both were manifestly excessive.
The October offences
These offences occurred while the appellant was serving a sentence of detention at the Youth Training Centre, Cavan. Both victims were youth workers on duty. On the day of the offending, the appellant was asked by a youth worker to clean the dining table. The appellant only partly cleaned the table. When asked to complete the task, the appellant refused to do so. He was then escorted to his room by a number of staff as punishment. When they reached the appellant’s room, he was patted down as a precaution against him concealing cutlery on his person. Whilst this was happening, he punched his first victim. He continued to strike him violently in the area of the head and body, and also punched his second victim to the face before being restrained by a number of youth workers. He was then handcuffed.
The first victim suffered a fractured left cheekbone, a fractured left eye socket and a fractured nose. Those injuries required surgery, which included the insertion of titanium plates to reconstruct his eye socket. On the material before the sentencing judge, it was unclear whether the first victim would need further surgery on his left eye, or whether there may be permanent damage.
The second victim suffered swelling and bruising to the right side of his face.
Both of these offences became aggravated offences because the victims were prisoner officers acting in the course of their duty.
The March offences
On 10 March 2014 at about 10.20 pm, four young Asian men were standing outside a restaurant in Moonta Street, Chinatown, in the city. They were approached by a group of men, including the appellant. They were abused and then, unprovoked, physically attacked. That attack included the victims being struck to the head, causing them to fall to the ground. The appellant was clearly involved in that. Also, the appellant was seen to kick his victims whilst they were on the ground and involve himself with the others in other acts of wanton, unprovoked violence. Of the four victims, one of them suffered a cut lip, another received multiple contusions to his right eye, and a third suffered a laceration to his eyelid and a fractured eye socket. These offences were aggravated offences because they were committed in the company of one or more persons.
It is to be noted that two of the offences were contrary to s 20(4) of the Act, and included the element of causing harm, whilst the other two offences were charges of aggravated assault, contrary to s 20(3) of the Act.
The appellant’s personal circumstances
The appellant, at the time of both sets of offences, was 18 years of age, having been born in March 1996. He has had an extensive criminal history for one so young. That history is clearly set out in his antecedent report, which was tendered to the sentencing judge. That report indicates a number of offences of violence which have been dealt with by the Youth Court, including a previous Youth Court offence for aggravated common assault of a staff member at a youth training centre. For that offence, the appellant was sentenced in the Youth Court to seven months detention and ordered to be released after serving two months. It was whilst serving that period of detention that the October offences occurred.
The sentencing judge was assisted by a psychological report from Dr Mark S Holmes (12 April 2015), a pre-sentence report and a s 32 report. All of that material sets out a very disturbing and sad history.
In short, the appellant was born in Western Australia and moved to South Australia when he was 14 years of age. His father was an alcoholic who was violent towards the appellant’s mother, as well as to him and his brothers. His father spent many years in prison. The appellant’s mother was addicted to drugs and also had problems with alcohol. When she and the appellant’s father separated, his mother had a number of partners, many of whom were also violent. The appellant reported that these men not only beat his mother, but also beat him and his brothers, as his father had done. It is clear from the reports that the appellant suffers from violent outbursts which he cannot control. There is also a suggestion that he is suffering from a bipolar disorder and depression. However, Dr Holmes is of the opinion that neither of those conditions, if they exist, contributed to the appellant’s violent outbursts. According to Dr Holmes, “There is little doubt that the appellant’s propensity for violence is as a result of growing up in a dysfunctional, neglectful, chaotic family environment where drug use and alcohol abuse was the norm”.
It is clear that the appellant has had an horrific upbringing.
The appeal
There are two grounds of appeal, namely:
(a)the head sentence was manifestly excessive; and
(b)the non-parole period was manifestly excessive.
I deal with each in turn.
First, the appellant argues that, in setting the head sentence, the sentencing judge erred in the methodology that he has used. As I understand the argument, the appellant submits that there was a notional starting point for the October offences (before the reduction of 30 per cent) of five years, four months and approximately 11 days, and for the March offences of three years, two months and approximately 18 days. They were then reduced and made cumulative to a round figure of six years. Then 12 months was deducted. The appellant argues that, it is to be inferred that, to get a round figure of six years, one had to accumulate what might be described as uneven figures. This would indicate that the sentencing judge started at the figure of six years and, in a sense, worked backwards. That is how I understand the argument. The appellant argues that, if this is so, then the methodology is wrong.
The argument has the attraction of novelty, if not ingenuity. However the fact that the final figure is what I might call a “round” figure, does not necessarily mean that the judge started his sentencing process with that figure and worked backwards. Often, sentences are rounded off after the appropriate process has been undertaken. In my view, that is what happened here, and I reject that argument.
The appellant also puts that the 12 months deducted for matters personal to the appellant (about which there is no argument) should have taken place after the question of totality was considered and not before. The appellant could provide no authority for that proposition. There appears to be no reason why that should be done. As this Court has said on numerous occasions, consideration of totality is the final step in the sentencing process. That is what occurred here and, therefore, the judge did not err.
The appellant also argues that the sentencing judge erred in his sentencing remarks when he did not correctly identify the maximum penalties for the offences. In relation to the October offences, which included one count of aggravated assault, the learned sentencing judge said that this offence attracted a maximum of four years, where it was three years.
In relation to the March offences, the sentencing judge said:
You are also before the court to be sentenced in relation to four counts of aggravated assault, all committed by you in the company of others on 10 March 2014, only a couple of days after your 18^thbirthday. You pleaded guilty to those charges in the Magistrates Court on 20 January 2015. For each of those assaults you faced a maximum sentence of four years imprisonment.
This summary was incorrect, because after the information was amended, the appellant pleaded guilty to only two counts of aggravated assault causing harm, attracting a maximum of four years imprisonment, and two counts of aggravated assault which carried a maximum of three years.
The appellant submits that, in sentencing against incorrect maximum penalties, the sentencing judge erred, and such an error fatally infected the setting of the head sentence.
Looking at the sentencing remarks as a whole and all the matters the sentencing judge considered, I cannot agree that these mistakes as to the maximum penalties affected the ultimate sentence. In my view, the error was properly identified by the appellant, but could have had no significance in the ultimate sentence imposed.
The appellant’s final submission about the head sentence is that the sentencing judge should have allowed some form of limited concurrency of the October and March offences. As I understand his argument, it is that all the offending springs from the same source, namely, the appellant’s troubled upbringing leading to sporadic, angry outbursts. Because of that, the appellant argues there is an underlying link between all of the offences and the judge erred in finding that there was nothing to justify making the two sentences other than cumulative.
In my view, the judge did not err in so doing. Both sets of offences were clearly separate in time and, although they might all be described as “nasty” assaults, they were not only two criminal incursions, but also separate in nature, one being in a group situation in the streets, and the other assaulting detention officers whilst incarcerated. The sentencing judge did not err in that aspect.
Bearing in mind all the circumstances, I find the head sentence was not manifestly excessive.
The non-parole period
The appellant argues that the sentencing judge, in setting the non‑parole period, failed to properly consider the appellant’s youth. At the time of both sets of offences, he was 18 years of age. He also argues that the judge erred when he said in his sentencing remarks:
Of concern to me is your apparent lack of remorse for your violent actions, despite pleading guilty and claiming that you feel sorry for your actions.
The judge then went on to refer to various comments in the reports received by him, in particular the pre-sentence report. The appellant pointed to comments made to the psychologist, Dr Holmes, about the appellant feeling sorry each time he loses his temper and indicating he would like to solve the problem of his loss of temper. However, the sentencing judge was perfectly entitled to conclude, on the material before him, there was an absence of contrition in relation to this offending aside from the fact that the appellant had pleaded guilty.
I can find no error.
The question of the appellant’s youth and the setting of the non-parole period has occupied my mind. The appellant, of course, is very young. However, the judge had to balance that fact, both with the appellant’s disturbingly violent record and, of course, his horrific upbringing. The judge also had to bear in mind that the offending was not only nasty but, in many ways, vicious and very dangerous. In my view, the sentencing judge was justified in setting the non‑parole period that he did.
Neither ground of appeal is made out.
Conclusion
I would dismiss the appeal.