R v Groth

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GROTH
[2013] SASCFC 108
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice David and The Honourable Justice Stanley)
21 October 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
The appellant pleaded guilty to one count of manslaughter. He was sentenced to a term of imprisonment of 10 years with a non-parole period of eight years.
The appellant was sentenced on the basis that he unlawfully killed the victim during the course of an argument which occurred in the kitchen of the victim’s home on 11 December 2011. During the course of that argument, on one occasion the victim pushed the appellant away from him, grabbing him around the neck. The appellant then retaliated by punching the victim in the face. The appellant then picked the victim up and threw him on the floor. The appellant kicked the victim again as he lay on the floor, in the head and in the ribs. The victim died in hospital on 17 December 2011.
The appellant had been committed for trial on an information alleging murder but pleaded guilty to the alternative charge of manslaughter on the morning of trial. The appellant had indicated to the DPP from an early stage that he was prepared to plead guilty to manslaughter, but an agreement could not be reached as to the factual basis of the plea until the morning of trial.
In imposing sentence, the judge found that the offending could not be categorised in the lowest range of offending for manslaughter.
The appellant appeals against sentence, on the grounds that (1) the sentence is manifestly excessive; and (2) the sentencing judge erred in failing to find special reasons existed pursuant to s 32A of the Criminal Law (Sentencing) Act 1988 (SA) enabling the Court to fix a non-parole period shorter than four-fifths of the length of the head sentence.
Held (by Stanley J, Vanstone and David JJ agreeing, dismissing the appeal):
1. There was no error in the sentencing judge’s assessment that the appellant’s offending fell within a serious category for the crime of manslaughter. [24].
2. The starting point of 12 years imprisonment was within the range of penalty open to the sentencing judge, having regard to the circumstances of the offending. [24].
3. The discount of 16.66 per cent of the starting point of 12 years for the appellant’s plea of guilty was within the sentencing judge’s discretion. [28].
4. The sentencing judge’s assessment that special reasons did not exist for fixing a non-parole period shorter than the prescribed period was correct. [36]; [42].
Criminal Law (Sentencing) Act 1988 (SA) s 32, s 32A; Criminal Law Consolidation Act 1935 (SA) s 13, referred to.
Markarian v The Queen (2005) 228 CLR 357; Dinsdale v The Queen (2000) 202 CLR 321, discussed.
R v Narayan [2011] SASCFC 61, considered.

R v GROTH
[2013] SASCFC 108
Court of Criminal Appeal: Vanstone, David and Stanley JJ

VANSTONE J: I would dismiss the appeal. I agree with the reasons of Stanley J.
DAVID J: I would dismiss the appeal. I agree with the reasons of Stanley J.
STANLEY J:
Introduction
This is an appeal against sentence.
The appellant pleaded guilty to one count of manslaughter. He was sentenced to a term of imprisonment of 10 years with a non-parole period of eight years.
There are two grounds of appeal. First, that the sentence is manifestly excessive. Secondly, that the sentencing judge erred in failing to find special reasons existed pursuant to s 32A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) enabling the Court to fix a non-parole period shorter than four-fifths of the length of the head sentence.[1]
[1] Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(ba).
The appellant had been committed for trial on an information alleging murder but pleaded guilty to the alternative charge of manslaughter on the morning of trial. The appellant had indicated to the DPP from an early stage that he was prepared to plead guilty to manslaughter but an agreement could not be reached as to the factual basis of the plea. On the morning of trial, the appellant agreed that he would plead to the charge of manslaughter on the basis of the witness statements of Helen Kay Carmen.
The maximum penalty for the offence of manslaughter is life imprisonment and/or a fine.[2]
[2] Criminal Law Consolidation Act 1935 (SA) s 13.
The sentencing judge identified a starting point of 12 years imprisonment. That was reduced by two years for the plea of guilty.
The circumstances of the offending were summarised by the sentencing judge as follows:
The facts on which I intend to sentence you today should be made clear and they are these: that you unlawfully killed Mr Grund during the course of an argument which occurred in the kitchen of his home on 11 December 2011. Prior to the fatal blows, you were arguing and yelling at each other in the course of an argument about your girlfriend at the time. During the course of that argument, on one occasion Mr Grund pushed you away from him at one stage, grabbing you around the neck. You then retaliated by punching him in the face.
You then picked him up and threw him on the floor. He hit his head either on the kitchen bench or on the fridge as he fell to the floor. You kicked him again as he lay on the floor, in the head and in the ribs.
At that point your girlfriend pulled you away. She then gave you a towel to help Mr Grund as he was bleeding. Your only comment was “Let him bleed to death”. You went to move towards him again but this time your girlfriend succeeded in pulling you away. You then threatened to stab those left in the kitchen if anyone called the police.
This was not the first time that you had assaulted Mr Grund. Some weeks prior to 11 December you hit Mr Grund in circumstances where he intervened to try and defend Ms Carmen after you had hit her on the head.
Plainly, Mr Groth, you have a very nasty temper, especially when you have been drinking. You had been drinking on 11 December 2011. The estimates of your consumption vary but it is plain from the witness statements that you had consumed a substantial quantity of wine.
Mr Grund did not immediately seek medical help. However, his condition deteriorated over the next day or so. He was ultimately admitted to hospital and he died on 17 December 2011.
Some of Mr Grund’s injuries attributable to your assault included a fracture to the nasal bone, a fractured sixth rib and extensive bruising about the head, the neck and the upper body.
Mr Grund was a 73 year-old man. You had been living with him and some other people who were also boarding at his home for several months prior to his death. He was a kindly man. Your acts have deprived his children and his grandchildren of their beloved grandfather and father.
At the time the offence was committed the appellant was 37 years old.
I will return to the circumstances of the offending later in these reasons.
In imposing sentence, the judge found that the offending could not be categorised in the lowest range of offending for manslaughter. She characterised the offending as a violent, unprovoked attack on an elderly man in his own home in circumstances where the appellant had previously been violent towards him on at least one occasion. In these circumstances, her Honour regarded the offending as being within a serious category for the crime of manslaughter.
Principles on appeal
The circumstances in which an appellate court may interfere with a sentence are well known.
In Markarian v The Queen[3] Gleeson CJ, Gummow, Hayne and Callinan JJ described those circumstances as follows:[4]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[Footnotes omitted].
[3] [2005] HCA 25, (2005) 228 CLR 357.
[4] [2005] HCA 25 at [25], (2005) 228 CLR 357 at 370 – 371.
This approach was further explained in Dinsdale v The Queen[5] by Kirby J who said:[6]
As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.
[Footnotes omitted].
[5] [2000] HCA 54, (2000) 202 CLR 321
[6] [2000] HCA 54 at [59], (2000) 202 CLR 321 at 340.
Manifestly excessive
The appellant submits that the sentencing judge erred in characterising the nature of the offending as being unprovoked and within a serious category for the crime of manslaughter.
He submits that on the sentencing judge’s own findings, the appellant’s attack was provoked by the victim who was arguing and shouting at the appellant and then pushed the appellant, grabbing him around the neck. Next he submits that the objective circumstances of the offending do not place it in a serious category for the crime of manslaughter. He submits that the fact of the provocation, the absence of a weapon, the fact that the attack was spontaneous rather than premeditated, occurred under the influence of alcohol, was over quickly and did not involve an intention on the part of the appellant to cause grievous bodily harm, indicate offending in the lower range of seriousness.
He submits that in these circumstances, the starting point of 12 years imprisonment is manifestly excessive.
I do not accept these submissions.
The sentencing judge noted correctly that there was no suggestion that there was any provocation.[7] I consider that unsurprising. As I have noted, the plea was entered on the basis of the witness statements of Helen Kay Carmen.
[7] Sentencing remarks AB 98.
There were three statements of Ms Carmen. Two statements, both dated 2 January 2012, concerned the circumstances of the appellant’s attack on the victim. They disclosed that at the time of the attack, the victim was sitting down at the kitchen table. The appellant entered the kitchen quite quickly. He appeared angry. He walked up to the victim and leant in close to his face. He was shouting at him. The victim told the appellant to “get out of my face or I’ll push you”. The appellant replied “go ahead”. Ms Carmen, in her first statement of 2 January 2012, then describes the victim lifting up both hands at this point and pushing the appellant in the chest. She says the appellant then hit the victim in the face with his right hand. The victim was still sitting in the chair. She describes the appellant then grabbing the victim by his shirt front with both hands, lifting him off the chair and throwing him to the floor. This left the victim lying on the floor. The appellant then kicked him once in the chest/stomach area. The appellant then kicked the victim once to the head. In her further statement of 2 January 2012, Ms Carmen describes the victim pushing the appellant away by grabbing him around the neck as the appellant lent over him while the victim was sitting in the chair.
This attack occurred against a background of an assault three weeks earlier by the appellant upon the victim when the appellant punched the victim.
In my view, nothing in the two statements of Ms Carmen describing the circumstances of the offending could constitute a provocation. To my mind, the victim was acting in self-defence in attempting to fend off the appellant who was acting in an angry, belligerent and threatening fashion.
Moreover, the attack upon the victim was violent and protracted. It was a vicious attack on a defenceless old man by a much younger man standing over him. I do not consider there was any error in the sentencing judge’s assessment that the appellant’s offending fell within a serious category for the crime of manslaughter. This is not a case of death resulting from a single blow struck in the course of a pub fight. Furthermore it occurred in the context of a previous assault by the appellant upon the victim. Neither the absence of a weapon, the lack of premeditation, the fact that the appellant had no intention to kill or cause grievous bodily harm or the role that alcohol played, renders the sentencing judge’s characterisation of the level of offending erroneous. In any event, the relevant question is whether the starting point of 12 years imprisonment was manifestly excessive. In my assessment it was not. It was within the range of penalty open to the sentencing judge, having regard to the circumstances of the offending.
The appellant further submits that the head sentence is manifestly excessive because the sentencing judge gave inadequate weight to the plea of guilty and the appellant’s remorse and contrition.
The sentencing judge addressed this topic as follows:
Much was made by both counsel of the circumstances in which you entered the plea of guilty. Your counsel said, and I accept, that you were always prepared to plead guilty to manslaughter, even before this matter was committed for trial. The plain fact of the matter is, however, that you did not enter your plea of guilty until the day of your trial.
The circumstances surrounding the entry of the plea of guilty on the day of trial were that the appellant indicated a preparedness to plead guilty to a charge of manslaughter from an early stage, but on a factual basis unacceptable to the Director of Public Prosecutions. It was only at the last minute that the appellant decided to plead guilty on the basis of the facts as asserted in the witness statements of Ms Carmen.
In my view, given the lateness of the plea and the reason the plea was entered late, the discount of two years representing 16.66 per cent of the starting point of 12 years, was within the sentencing judge’s discretion. No error has been demonstrated.
I would dismiss this ground.
Section 32A of the Sentencing Act
The appellant submits that the sentencing judge fell into error in not finding special reasons existed pursuant to s 32A of the Sentencing Act enabling her to fix a non-parole period shorter than the prescribed period of four-fifths of the length of the head sentence.
Section 32A provides:
(1)If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies.
(2)In fixing a non-parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may—
(a)     if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b)     if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)     the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b)     if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c)     the degree to which the offender has co‑operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.
In this case the mandatory minimum non-parole period was four-fifths by reason of the combined operation of s 32(5)(ba) and s 32(10)(d)(i) of the Sentencing Act.
Section 32(5)(ba) provides:
(5) The above provisions are subject to the following qualifications:
…
(ba) if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four-fifths the length of the sentence;
…
Section 32(10)(d) provides that a serious offence against a person means:
[A] major indictable offence (other than an offence of murder) that results in the death of the victim or the victim suffering total incapacity;
…
The only factors to be considered by the sentencing judge in determining whether special reasons existed for the purposes of s 32A(2)(b) are those prescribed by s 32A(3). Moreover, it is important to note that in considering whether to fix a shorter non‑parole period than the mandatory minimum pursuant to s 32A(2)(b), the mandatory minimum non-parole period represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which it applies.[8]
[8] R v Narayan [2011] SASCFC 61 at [23].
It is implicit in the reasons of the sentencing judge that she was satisfied that special reasons did not exist for fixing a non-parole period shorter than the prescribed period. In my view, this assessment was correct.
There was nothing concerning the victim’s conduct or condition which mitigated the offender’s conduct. His subsequent failure to obtain medical assistance is irrelevant. First, because there is no evidence that his failure to seek medical attention earlier contributed in any way to his death. Secondly, because the provision is concerned with the victim’s conduct or condition either before or at the time of the offending so as to mitigate the offender’s conduct. In my view, the conduct or condition of a victim which occurs after the offending is unlikely ever to mitigate the offender’s conduct. After all, the offender’s conduct with which the provision is concerned is the conduct constituting the offence.
The circumstances surrounding the plea, either alone or in combination, do not constitute special reasons. The fact of the plea per se does not warrant the finding of special reasons. In any event, the plea was entered late, and in the face of what the sentencing judge correctly characterised as a strong prosecution case in relation to manslaughter.
In noting that the plea was late, I do not overlook the appellant’s submission that he had always been prepared to plead to manslaughter. However, as I have discussed earlier, he was not prepared to enter a guilty plea on the basis of the facts alleged by the prosecution until the day of trial. Those were circumstances of his own making.

Finally, there was nothing particular about any cooperation in the investigation or prosecution of the offending which would justify a finding of special reasons, again, either alone or in combination, within the meaning of s 32A, other than the offer to plead guilty to a charge of manslaughter, which I have addressed above. The appellant did not suggest otherwise.
The sentencing judge ultimately concluded that the circumstances of the appellant’s offending did not fall within the lower range of seriousness for this type of offending. Accordingly, she was not prepared to impose a lower non-parole period than the prescribed mandatory minimum.
In my view, there was no error in the sentencing judge’s approach.
It is important to bear in mind that even if the sentencing judge had found that special reasons existed in this case, that did not mean that she was obliged to fix a non‑parole period shorter than the mandatory period. The existence of “special reasons” merely enlivens the Court’s power to consider whether a non‑parole period shorter than the mandatory period should be fixed. That consideration is informed by the terms of s 32A(1) that provides that the mandatory minimum represented the non‑parole period for an offence at the lower end of the range of objective seriousness for such an offence.
I would dismiss this ground.
Conclusion
I would dismiss the appeal.

[2013] SASCFC 108

21 October 2013

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