R v Halsey - [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.
Criminal Law Consolidation Act 1935 (SA s 241, s 269J and s 353(4), referred to.
R v Wiskich (2000) 207 LSJS 431; R v JW [2001] SASC 404; R v Place (2002) 81 SASR 395; Cameron v The Queen (2002) 209 CLR 339, considered.

R v HALSEY
[2008] SASC 171
Court of Criminal Appeal Gray, White and David JJ
GRAY J.

This is an appeal against sentence.
Introduction
The appellant, Vaughn Michael Halsey, pleaded guilty and was convicted of the offence of assisting an offender contrary to section 241 of the Criminal Law Consolidation Act 1935 (SA).[1] The maximum penalty for this offence is imprisonment for a term of 10 years. The learned sentencing Judge imposed a sentence of three years and four months’ imprisonment. A non-parole period of two years and six months was fixed. The sentence was directed to commence on 14 September 2006, the date on which the appellant was taken into custody.
[1] Section 241(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
“Subject to subsection (2), a person (“the accessory”) who, knowing or believing that another person (“the principal offender”) has committed an offence, does an act with the intention of—
(a)impeding investigation of the offence; or
(b)assisting the principal offender to escape apprehension or prosecution or to dispose of proceeds of the offence,
is guilty of an offence.”
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”.
The appellant, as earlier observed, was jointly charged with murder. An issue as to his mental fitness to stand trial was raised and on 9 November 2007 the Judge found, pursuant to section 269J of the Criminal Law Consolidation Act,[2] that there were reasonable grounds to suppose that the appellant was unfit to stand trial. An investigation was ordered into his mental fitness to stand trial. That investigation led to the provision of specialist reports from psychiatrists and psychologists. It might be observed that the issue was finely balanced. All experts accepted that the appellant was intellectually challenged, however, their opinions differed as to whether, as a consequence, the appellant was unfit to stand trial.
[2] Section 269J of the Criminal Law Consolidation Act 1935 (SA) provides:
“(1)If there are reasonable grounds to suppose that a person is mentally unfit to stand trial, the court before which the person is to be tried may order an investigation under this Division of the defendant's mental fitness to stand trial.
(2)The court's power to order an investigation into the defendant's mental fitness to stand trial may be exercised—
(a) on the application of the prosecution or the defence; or
(b)if the judge considers the investigation necessary to prevent a possible miscarriage of justice—on the judge's own initiative.
(3)If a court orders an investigation into the defendant's mental fitness to stand trial after the trial begins, the court may adjourn or discontinue the trial to allow for the investigation.
(4)If a court before which a preliminary examination of an indictable offence is conducted is of the opinion that the defendant may be mentally unfit to stand trial, the preliminary examination may continue, but the court must raise for consideration by the court of trial the question whether there should be an investigation under this Division of the defendant's mental fitness to stand trial.”
Following a lengthy contested hearing, the Judge ruled that the appellant was fit to stand trial. Following this ruling the appellant pleaded guilty to the charge of assisting an offender. The Director accepted this plea in satisfaction of the information laid against the appellant.
The appellant pleaded guilty on the basis that when apprehended by the police he told them an entirely false story implicating himself as the murderer and exculpating Mr Shields.
The appellant’s account was that he and Mr Prindiville were drinking together on 6 August 2006 and then went to Mr Shields’ home. While there, alcohol was consumed. Mr Shields and Mr Prindiville started fighting. Mr Prindiville threw the first punch and Shields hit back. The fight continued for some time. According to the appellant, Mr Prindiville punched Shields a number of times to the head and body. The fight came to an end with Mr Prindiville lying on the floor. The appellant remained seated throughout the fight. He took no part in the fight. The appellant then left Mr Shields’ home and went to a detox centre. His movements thereafter are not clear. The appellant’s account was that Mr Shields asked him to help move the body from the house but that he refused.
The appellant claimed that he learned of Mr Prindiville’s death on the street and later learned of Mr Shields’ arrest. He was aware that the police were searching for him.
In the course of the Judge’s sentencing remarks, it was made plain that there was a real question as to whether anything in fact had been said about Mr Prindiville being an informant or whether that suggestion had simply been made up. The Judge considered raising the possibility of the appellant giving evidence but finally decided not to do so primarily because the appellant’s limited mental functioning would render the process futile. Accordingly, the Judge determined to accept the appellant’s plea on the basis on which it was advanced.
In the course of the sentencing remarks, the Judge outlined Mr Prindiville’s history of drug abuse. It was noted that, as a 21-year-old, Mr Prindiville was diagnosed with schizophrenia. Notwithstanding these difficulties, Mr Prindiville maintained regular contact with his family who assisted in his support. The Judge had regard to victim impact statements from the deceased’s parents and sister and noted the adverse impact that the circumstances of his death had upon them.
The Judge then addressed the circumstances of the appellant’s offending and noted:
I see this, your offence, as an extremely serious example of this type of offence, because by your false confession you might have altered the course of justice, such that Shields escaped any penalty at all. I can only speculate as to your motivations, but I am quite sure that you took a deliberate decision to take all the blame for the killing in an attempt to thereby exonerate Shields.
The Judge summarised the antecedents of the appellant:
You are 35 years of age. You have a long history of appearances in the courts of this State, Tasmania, Queensland and the Northern Territory. Whilst most of the offences for which you have been dealt are “street” type offences, there is among the list of convictions a significant number involving violence and some dishonesty offences. As I mentioned, I have heard extensive evidence as to your level of intellectual capacity and I accept that you are, in terms of intellectual functioning, in the lowest band of the population. Nonetheless, you have managed to look out for yourself, mostly on the streets, and clearly you have a degree of cunning and street awareness which enables you to get by.
The Judge then considered the relationship between the appellant’s mental state and his conduct surrounding the events of 6 August 2006:
Strangely, your slow thinking did not enmesh you in this offence. On the contrary, on your version, you did not get involved at the time of the killing. It was only later, when you had time to think about it and knew the police were looking for you, that you must have come up with your false story. Nonetheless, I take into account that you are intellectually challenged and therefore the importance of general deterrence in your sentence is less than it would usually be for a crime of this type. I am prepared to accept that you did not assess the seriousness of what you did in the same way as others would have.
Before coming to impose sentence, the Judge discussed the appellant’s plea of guilty and in that respect said:
Again, although I have regard to your plea of guilty, I propose to give it only limited weight for the reasons I mentioned earlier in relation to Shields.
To understand this reference, it is necessary to record that part of the Judge’s reasons in relation to Shields. They were as follows:
I take into account that you have pleaded guilty although I am not prepared to give that factor much weight. I say that because, as I see it, you entered your plea, at least in part, as a means of inducing the prosecution not to proceed with the more serious charge. Traditionally that was seen as robbing a plea of its force as a matter of mitigation. I do not go that far, but had your plea been entered at a much earlier stage – even were it not accepted – then it would have carried more significance.
The Appeal
Counsel for the appellant submitted that the Judge had failed to have proper regard to the appellant’s intellectual and psychological functioning. It was said that, notwithstanding the finding that he was fit to stand trial, there was no doubt that the appellant suffered from significant intellectual retardation. The evidence was said to establish that the appellant was illiterate and that his intellectual ability placed him in the bottom 0.2 percent of the population. It was said that there was a general conformity of medical and psychological opinion as to the extent of his disability. It was accepted, however, that the medical evidence did support the conclusion that the appellant was able to look out for himself mostly on the streets and had a degree of street awareness which enabled him to get by.
The Judge’s conclusion that the offence was an “extremely serious example of this type of offence” was challenged. It was contended that the police were of the view that the appellant exaggerated his role in the events of 6 August 2006 when interviewed and that it was inconceivable that Shields would have escaped justice by the appellant’s false confession. It was emphasised that the appellant was prone to inappropriate outbursts and grandiose statements. It was pointed out that he engaged in impulsive conduct as a result of his intellectual retardation. It was said that the police were well aware of these matters.
Counsel for the appellant further submitted that it was necessary for a sentencing court to determine the impact of a mental disorder upon both an offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. Reference was made to the observations in Wiskich,[3] where Martin J, with whom Prior and Williams JJ agreed, observed:
The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct.
It was contended that the Judge had not adequately addressed these considerations.
[3] R v Wiskich (2000) 207 LSJS 431 at [62].
These submissions should be rejected. The sentencing remarks disclose that the Judge took account of the appellant’s intellectual handicaps. The Judge specifically referred to the appellant’s intellectual functioning as being in the lowest band of the population. The remarks disclose that the Judge had regard to the appellant’s intellectual handicaps when assessing his ability to appraise the seriousness of his conduct. The Judge also had regard to those handicaps when determining the reduced weight to be given to general deterrence.
When considering the impact of the appellant’s plea of guilty, as earlier noted, the Judge applied the same reasons that she earlier referred to when addressing Mr Shields’ plea. In the event the Judge made a reduction of two months in arriving at the head sentence of three years and four months. This represented a reduction of approximately five percent.
On the hearing of the appeal, the Director conceded that the 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. As earlier discussed, the Judge ruled that there were reasonable grounds to suppose that the appellant was fit to stand trial and directed that an investigation be undertaken on that topic. Having regard to the appellant’s acknowledged intellectual handicaps and to the divided opinion as to fitness to stand trial, it would be unrealistic to expect any instructions to be taken from the appellant as to a plea before that issue was determined.
The Director conceded that the reasons of the Judge with reference to Mr Shields’ plea could not be carried through to the appellant’s plea. There was no question of any mental impairment in the case of Mr Shields. His plea did not come at an early stage.
It was also inappropriate to treat the appellant’s plea as having been a means of inducing the prosecution not to proceed with the more serious charge. Although the full circumstances are not known, it would appear that 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.[4] As earlier observed, the Director accepted Mr Shields’ plea for the offence of manslaughter on the basis that the appellant was not involved other than as a non-participating bystander.
[4] R v JW [2001] SASC 404.

The Director argued that the overall sentence remained appropriate, notwithstanding his concession concerning the plea of guilty. He drew attention to section 353(4) of the Criminal Law Consolidation Act and argued that as the overall sentence was appropriate the appeal should be dismissed. In my view this submission should be rejected. Courts have repeatedly emphasised the importance of the making of appropriate reductions for a plea of guilty.[5] The High Court in Cameron[6] confirmed the basis for the making of such a reduction. The Court drew attention to the utilitarian purpose for such a reduction. The Court also recognised that a plea may demonstrate contrition and remorse.
[5] R v Place (2002) 81 SASR 395.
[6] Cameron v The Queen (2002) 209 CLR 339.
In my view although the notional sentence of three years and six months before reduction could not be said to be beyond the proper exercise of sentencing discretion, it was at the top of the appropriate range.
This Court should re-sentence the appellant. As earlier observed, apart from the inadequate reduction for the plea of guilty, the sentence imposed was within the Judge’s sentencing discretion. In the circumstances, a reduction of ten months from the notional head sentence of three years and six months should have been made. As the Director pointed out there were factors that militated against a greater reduction. In my view, when assessing contrition and remorse, regard should be had to the appellant’s mental handicap.
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.
DAVID J. I agree that the appeal should be allowed for the reasons given by Gray J. I also agree with the orders he proposes.