R v Halsey

Case [2008] SASC 171

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HALSEY

[2008] SASC 171

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice David)

4 July 2008

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

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION - ASSISTANCE TO AUTHORITIES AND CO-OPERATION

Appeal against sentence - appellant confessed to committing murder - appellant charged with offence of murder - appellant pleaded guilty and was convicted of the offence of assisting an offender contrary to section 241 of the Criminal Law Consolidation Act 1935 (SA) - Director accepted this plea in satisfaction of the information laid against the appellant - appellant pleaded guilty on the basis that when apprehended by the police he told an entirely false story implicating himself as the murderer - appellant suffered from significant intellectual retardation - sentencing Judge imposed a sentence of three years and four months’ imprisonment - this sentence included a reduction of two months on account of the plea of guilty - a non-parole period of two years and six months was fixed - whether sentence imposed was manifestly excessive - whether Judge had adequate regard to the appellant’s mental handicap - whether Judge failed to make an adequate reduction on account of the plea of guilty.

Held (allowing the appeal): the sentencing remarks disclose that the Judge took account of the appellant’s intellectual handicaps, both when assessing the appellant's ability to appraise the seriousness of his conduct and when determining the reduced weight to be given to general deterrence - Judge’s approach to the appropriate reduction for the plea of guilty overlooked the fact that the appellant’s plea followed immediately on the finding that he was fit to stand trial and accordingly at the earliest realistic opportunity for a plea to be entered - Judge erred in treating the appellant’s plea as having been a means of inducing the prosecution not to proceed with the more serious charge, as by the time of the appellant’s plea there was no real prospect of the Director being able to pursue the charge of murder against the appellant - apart from the inadequate reduction for the plea of guilty, the sentence imposed was within the Judge’s sentencing discretion - a reduction of ten months from the notional head sentence of three years and six months should have been made on the basis of the plea of guilty - appellant re-sentenced to a term of imprisonment of two years and eight months - a non-parole period of one year and ten months is fixed.

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R v Halsey [2008] SASC 171
Case
[2008] SASC 171
Decision Date

CaseChat Overview and Summary

The appellant, an individual with significant intellectual retardation, appealed against the sentence imposed following his guilty plea to the charge of assisting an offender contrary to section 241 of the Criminal Law Consolidation Act 1935 (SA). The appellant, initially charged with murder, confessed to the police that he was the murderer but later pleaded guilty to the lesser charge of assisting an offender, which was accepted by the Director of Public Prosecutions. The appellant's plea came shortly after he was found fit to stand trial, and he was sentenced to three years and four months’ imprisonment, with a reduction of two months for the plea of guilty. The appellant argued that the sentence was manifestly excessive and that the sentencing judge did not adequately consider his intellectual handicap or sufficiently reduce the sentence for his plea of guilty.

The court was required to determine whether the sentence was manifestly excessive, whether the sentencing judge adequately considered the appellant's intellectual handicap, and whether the judge appropriately reduced the sentence for the plea of guilty. The court examined the sentencing judge's remarks to ascertain whether the judge took into account the appellant's intellectual disabilities when assessing his ability to appreciate the seriousness of his conduct and when determining the reduced weight to be given to general deterrence. The court also considered whether the judge appropriately factored in the plea of guilty, given that it followed immediately upon the finding of the appellant's fitness to stand trial.

The Court held that the sentencing remarks demonstrated that the judge took into account the appellant’s intellectual handicaps, both in assessing his ability to appreciate the seriousness of his conduct and in determining the reduced weight to be given to general deterrence. However, the judge's approach to the reduction for the plea of guilty overlooked the fact that the appellant's plea followed immediately upon the finding of his fitness to stand trial, which was the earliest realistic opportunity for a plea to be entered. The judge erred in treating the plea as a means of inducing the prosecution not to proceed with the more serious charge of murder, as by the time of the plea, there was no real prospect of the Director being able to pursue the charge against the appellant. Apart from the inadequate reduction for the plea of guilty, the sentence imposed was within the judge's sentencing discretion. A reduction of ten months from the notional head sentence of three years and six months should have been made on the basis of the plea of guilty. The appellant was re-sentenced to a term of imprisonment of two years and eight months, with a non-parole period of one year and ten months fixed.

The Court allowed the appeal and set aside the sentence imposed. The appellant was re-sentenced to a term of imprisonment of two years and eight months, with a non-parole period of one year and ten months fixed. The sentence was to be backdated to the date on which the appellant was first taken into custody.

Orders

Orders of the court

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Background

Background to the litigation

The appellant submitted that the sentence imposed was manifestly excessive. It was complained in particular that the Judge did not have adequate regard to the appellant’s mental handicap and failed to make an adequate reduction on account of the plea of guilty. The Facts The appellant and Ernest Robin Shields were initially jointly charged with the murder of Wayne Jeffrey Prindiville on 6 August 2006 at Adelaide. Mr Prindiville’s body was found inside a disused warehouse. The body had been dragged there from the home of Mr Shields. A passer-by alerted the police to the position of the body which was visible through an open door. The police were able to follow the drag marks to Mr Shields’ home where they located and arrested Mr Shields. There were cuts and marks about Mr Shields’ face and body that suggested that he may have been involved in a fight. On the eve of the trial, Mr Shields pleaded guilty to the alternative charge of manslaughter. This plea was accepted by the Director of Public Prosecutions in satisfaction of the information against Mr Shields. The basis of Mr Shields’ plea to the offence of manslaughter was that he had acted in excessive self-defence. Mr Shields’ account was that he met Mr Prindiville and the appellant by chance at a hotel in the city. He had not previously known either of them. The three were drinking alcohol purchased by Mr Shields in return for a promise that the others would provide Mr Shields with cannabis. After a time, the men left the hotel and returned to Mr Shields’ home. Mr Shields’ account was that Mr Prindiville attacked him with a coffee table and in the course of the attack he was hit over the head at least once. Mr Shields fought back and eventually struck Mr Prindiville in the head with a broken leg from the coffee table. At some point in the struggle Mr Shields kicked Mr Prindiville in the head at which point he dropped the coffee table and fell to the ground. Mr Shields lost consciousness at this time. When Mr Shields came to he saw Mr Prindiville in a different position on the floor. He checked and found no pulse and noted that Mr Prindiville was not breathing. Mr Shields then dragged the body to the disused warehouse, returned to his home, cleaned up and went to sleep. Mr Shields said that he had consumed a quantity of alcohol as well as prescription drugs with the consequence that he had a poor memory of the detail of the events. According to Mr Shields’ account, the appellant was present at the time of the fight but did not participate. When Mr Shields regained consciousness, the appellant had left. Mr Shields’ account was that the appellant had no involvement in the fight or the moving of the body to the warehouse. The police found the appellant’s fingerprint on an empty bottle at Mr Shields’ home. The bottle was in a rubbish bin, together with blood-stained items. This provided some evidence of the appellant’s association with the events of 6 August 2006. The police were actively seeking the appellant for some time but he was not located and arrested until 14 September 2006. When questioned about his knowledge of Mr Prindiville’s death he at first claimed that he was “part of it” and said “Yeah, he said he was a police informant and that’s how we treat them”. A little later in interview the appellant claimed that Mr Shields “didn’t do anything, I done it”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J DAVID J
Accordingly, the appellant should be re-sentenced to a term of imprisonment of two years and eight months. A non-parole period of one year and ten months should be fixed. Conclusion I would allow the appeal. The sentence imposed should be set aside. This Court should re-sentence the appellant to a term of imprisonment of two years and eight months. A non-parole period of one year and ten months should be fixed. The sentence should be backdated to commence on 14 September 2006, the date on which the appellant was first taken into custody. WHITE J: I agree in substance with the reasons of Gray J. I add that, in my opinion, it was appropriate for the sentencing judge to regard as serious the appellant’s conduct in making a false confession. The making of a false confession has the potential to distort the course of justice. That is so even when, as in the present case, the police were sceptical about the truthfulness of the “confession”. The fact that the appellant was present at the time of Mr Prindiville’s death meant that his “confession” could not be ignored by the prosecuting authorities. Furthermore, whatever doubts the police held, the fact that a “confession” had been made was capable of being exploited by Mr Shields before a jury had either the charge of murder, or a charge of manslaughter proceeded to trial. As the judge pointed out in her sentencing remarks, the appellant’s false confession might have altered the course of justice such that Mr Shields escaped any penalty at all. I agree with the orders proposed by Gray J. I agree that the appeal should be allowed for the reasons given by Gray J. I also agree with the orders he proposes.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, DAVID J

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