R v Hall

Case [2015] SASCFC 104

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HALL

[2015] SASCFC 104

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)

30 July 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM OR SERIOUS INJURY - GENERALLY

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

Appeal against sentence.  The appellant pleaded guilty to the offence of aggravated causing serious harm with intent to cause serious harm.  The victim and appellant were friends but relations between them were periodically tempestuous.  The offending occurred after the victim and appellant had attended the funeral of a mutual friend.  The appellant was an alcoholic and had consumed a significant amount of alcohol on the day of the offence.  She informed a friend that she was angry at the victim and was going to stab him.  She concealed a knife in her pants, went to the victim’s home and stabbed him a total of seven times.  The appellant’s criminal antecedents were relatively minor and she had no history of violent offending.  The sentencing Judge imposed a term of imprisonment of eight years and six months, having made a reduction of three years and six months on account of her plea of guilty.  A non-parole period of five years was fixed. 

Whether a starting point of 12 years’ imprisonment before reduction for the plea was manifestly excessive.  Whether a non-parole period of almost 60 per cent of the head sentence was manifestly excessive. 

Held per the Court (dismissing the appeal against the head sentence):

The offending was very serious and the victim’s injuries were life threatening. The appellant’s intoxication does not mitigate the significant element of premeditation.  Although a starting point of twelve years is high, it was not manifestly excessive in the circumstances.

Held per Kourakis CJ and Gray J (allowing the appeal against the non-parole period):

1.       The appellant is unlikely to commit another violent offence and has strong prospects of rehabilitation.

2.       In these circumstances a non-parole period of nearly 60 per cent of the head sentence is manifestly excessive.

3.       Appellant resentenced to a non-parole period of four years. 

Held per Stanley J (dissenting) (dismissing the appeal against the non-parole period):

1.       In fixing the non-parole period, the sentencing judge had proper regard to the seriousness of the offending, the personal circumstances of the appellant and the prospect of rehabilitation.

2.       I am unable to say that a five year non-parole period, in the context of a head sentence of eight years and six months, is so high as to be outside a reasonable range for a non-parole period proportionate to the head sentence.

3.       I would dismiss the appeal against the non-parole period.

Criminal Law Consolidation Act 1935

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R v Hall [2015] SASCFC 104
Case
[2015] SASCFC 104
Decision Date

CaseChat Overview and Summary

The appeal concerned Diana Patricia Hall, the appellant, who was sentenced in the District Court for the offence of aggravated causing serious harm with intent to cause serious harm. The dispute on appeal related to the severity of the sentence imposed, specifically the head sentence and the non-parole period. The appeal was heard by Kourakis CJ, Gray and Stanley JJ.

The legal issues before the court were whether the sentencing judge erred in imposing a head sentence of eight years and six months imprisonment and a non-parole period of five years. The appellant argued that the non-parole period was manifestly excessive, while the prosecution did not challenge the head sentence.

The court found that the sentencing judge did not err in imposing the head sentence of eight years and six months. However, the court determined that the non-parole period of five years was manifestly excessive. The reasoning for this was that the five-year non-parole period represented nearly 60 per cent of the head sentence. The court considered the appellant's chronic alcoholism and depression, her remorse, her motivation to abstain from alcohol, and the low likelihood of her reoffending, as evidenced by a report from Dr Balfour. These factors, in the court's view, meant the non-parole period did not adequately reflect her prospects of rehabilitation.

Consequently, the court ordered that the head sentence of eight years and six months imprisonment remain unchanged, but the non-parole period was reduced to four years imprisonment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KOURAKIS CJ
I reach a different view with regards to the non-parole period. The non-parole period of five years represents nearly 60 per cent of the head sentence. As I have said, the circumstances surrounding the offending, although not mitigatory, are such that the appellant is unlikely to commit another violent offence. The report of Dr Balfour shows that the appellant recognises that her alcohol consumption has been a negative influence in her life, and she is motivated to abstain from alcohol in the future. The sentencing Judge also acknowledged that the appellant is remorseful for her offending. Given all of these factors, it is my view that the non-parole period imposed does not adequately reflect the appellant’s chronic alcoholism and depression, her prospects of rehabilitation and the low likelihood of reoffending. It was manifestly excessive. I would impose a non-parole period of four years.Conclusion The sentencing Judge did not err in imposing a head sentence of eight years and six months imprisonment. The non-parole period of five years imprisonment is manifestly excessive. I would leave the head sentence unchanged. I would reduce the non-parole period to four years imprisonment. This is an appeal against sentence. On 2 January 2014, the defendant and appellant, Diana Patricia Hall, was charged on Information with the offence of attempted murder and, in the alternative, with the offence of aggravated causing serious harm with intent to cause serious harm.[3] On 1 August 2014, the defendant pleaded guilty to the offence of aggravated causing serious harm with intent to cause serious harm. The prosecution accepted this plea in satisfaction of the Information. Following her plea, the defendant was committed for sentence in the District Court. The defendant faced a maximum term of imprisonment of 25 years. [3] Criminal Law Consolidation Act 1935 (SA) section 23(1). The sentencing Judge imposed a term of imprisonment of eight years and six months, having made a reduction of three years and six months on account of the plea of guilty. A non-parole period of five years was fixed. The Judge’s summary of the circumstances of the offending was not challenged on appeal. The incident giving rise to the offence occurred on 31 December 2013. Earlier that day, the defendant and the victim had attended the funeral of a friend. The defendant gave a eulogy, the terms of which upset the victim. The victim suggested to the defendant that the eulogy was not very good and that the eulogy was more about herself than the deceased. The funeral concluded at about midday and thereafter the defendant consumed a considerable amount of alcohol. During the afternoon, it is apparent that the defendant decided to stab the victim. According to the police statements, at about 5.30 pm the defendant told a friend that she was going to do so. The defendant and the victim lived in the same suburban street. At about 6.00 pm the defendant took a large kitchen knife and walked across the road to the victim’s home. The victim at this time was standing just outside the door of his unit. The defendant hid the knife in her pants. The victim thought that the defendant was coming over to have a New Year’s beer with him. However, this was not the defendant’s intention. When a few feet from the victim, the defendant pulled the knife from her pants and stabbed the victim. The defendant continued to stab the victim while he tried to escape. Witnesses observed the defendant following the staggering and bleeding victim along the street. A short time later the victim was found lying in a pool of blood in his unit block. The victim had been stabbed a total of seven times.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ

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