R v Harkin
[2011] SASCFC 24
•7 April 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HARKIN
[2011] SASCFC 24
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)
7 April 2011
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 - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
Prosecution appeal against sentence - two defendants, father and son, pleaded guilty to offence of aggravated causing serious harm with intent - father sentenced to a term of imprisonment of three years with a non-parole period of 18 months, and son sentenced to a term of imprisonment of two years and three months with a non-parole period of 12 months - sentencing Judge considered that good reason existed to suspend both sentences on the defendants' entry into two year unsupervised good behaviour bonds - where circumstances of offending serious, and in context of revenge attack - whether Judge erred in exercise of discretion to suspend the sentences - discussion regarding prosecution appeals against sentence and the approach to resentencing in light of section 340 of the Criminal Law Consolidation Act 1935 (SA) - discussion regarding the courts' approach to private revenge taking.
Held (as to both appeals): Permission to appeal granted - appeal allowed - Judge failed to distinguish adequately between the circumstances of the two defendants when considering the question of suspension of sentence - the Judge had regard to an irrelevant factor, or gave inappropriate weight to that factor, considering that the motivation for the conduct of the defendants was mitigatory - sentences imposed manifestly inadequate - the Court resentenced the defendants as follows:
As to John Harkin - term of imprisonment of three years imposed, with a non-parole period of 18 months fixed - decline to suspend that sentence.
As to Brendan Harkin - term of imprisonment of two years and three months imposed, with a non-parole period of 12 months fixed - sentence to be suspended on the defendant’s entry into a three year good behaviour bond, to be supervised for a period of 12 months, a condition of which is that he undertake 200 hours of community service.
Criminal Law Consolidation Act 1935 (SA) s 23(1), s 340 and s 353; Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA) s 5; Acts Interpretation Act 1915 (SA) s 22(1), referred to.
R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Dinsdale v The Queen (2000) 202 CLR 321; R v Hicks (1987) 45 SASR 270; R v Hayes (1987) 29 A Crim R 452; R v Marikar [2010] SASCFC 36; R v Elliott (2001) 121 A Crim R 254; R v Mangelsdorf (1995) 66 SASR 60; R v Ivic [2006] SASC 8; R v Robinson [2004] SASC 189; R v Meers (1998) 101 A Crim R 329; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Director of Public Prosecutions v Whiteside (2000) 1 VR 331; R v Sheekey [1996] EWCA 385; R v Elmir [2003] NSWCCA 192; Lovell v The Queen [2006] NSWCCA 222; Barlow v The Queen (2008) 184 A Crim R 187; R v Mitchell (2007) 177 A Crim R 94; R v Dole [2010] NSWCCA 101; R v Willetts and Gurney [2009] NSWSC 1201; McGarry v The Queen (2001) 207 CLR 121; Strong v The Queen (2005) 224 CLR 1; R v McGaffin [2010] SASCFC 22; R v S; ex parte Attorney-General (Qld) [1999] QCA 398; Likiardopoulos v The Queen [2010] VSCA 344; R v Japaljarri [2000] VSC 466, considered.
R v HARKIN
[2011] SASCFC 24Court of Criminal Appeal: Gray, Sulan and White JJ
GRAY and SULAN JJ:
The Director of Public Prosecutions seeks permission to appeal against two sentences imposed in the District Court.
Introduction
The defendants and respondents, John Derek Harkin and Brendan Niall Harkin, were jointly charged with the offence of aggravated causing serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA).[1] Both pleaded guilty to the charge. John Harkin is the father of Brendan Harkin.
[1] 23—Causing serious harm
(1)A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 20 years;
(b)for an aggravated offence—imprisonment for 25 years.
On 7 December 2010, the Judge sentenced John Harkin to a term of imprisonment of three years. The Judge fixed a non-parole period of 18 months. The Judge considered good reason existed to suspend the sentence and exercised his discretion and ordered that the sentence of imprisonment be suspended on John Harkin’s entry into a good behaviour bond.
On the same occasion the Judge sentenced Brendan Harkin to a term of imprisonment of two years and three months, and fixed a non-parole period of 12 months. The Judge considered that good reason existed to suspend the sentence and exercised his discretion to suspend the sentence of imprisonment on Brendan Harkin’s entry into a two year good behaviour bond.
The Director’s applications were heard at the same time. Full argument was presented so that the appeals could be disposed of instanter should this Court be disposed to grant permission to appeal. The Director’s application for permission complained only of the Judge’s exercise of discretion to suspend the term of imprisonment imposed on each defendant.
The conduct giving rise to the offence occurred at the premises of Hungry Jacks at Ridgehaven on 8 August 2009. An incident involving an altercation occurred at the entrance to Hungry Jacks. There was a confrontation between two drivers; the male victim and John Harkin’s wife. The victim was travelling with his wife and granddaughter, and Mrs Harkin was travelling with her and John Harkin’s 15 year old daughter; Ms Harkin. Angry words were exchanged and there may have been minor physical contact. Following the confrontation, Mrs Harkin and her daughter drove to their nearby home and gave an account of the confrontation to the defendants.
It was accepted by the prosecution that the defendants formed the belief that the victim had been abusive to Mrs Harkin and that some significant physical confrontation had occurred. The prosecution did not accept that this belief accurately reflected what had in fact occurred.
The defendants, Ms Harkin and a young male friend then proceeded to Hungry Jacks in search of the victim. When they arrived, Ms Harkin identified the victim’s vehicle, and almost immediately, identified the victim as he moved within the Hungry Jacks premises to the toilets. Both defendants promptly followed the victim. They arrived at the toilet as the victim was about to close and fasten the door to a cubicle. John Harkin, forcibly opened the cubicle door and immediately and without warning assaulted the victim by punching and kicking his head and body. He did so with the intention of causing the victim serious harm. At or about the same time Brendan Harkin joined in the attack and assault. He kicked and punched the victim as he lay on the ground. The defendants then left their victim lying on the cubicle floor, returned to their vehicle and drove home.
The victim sustained severe injuries including fractures to the head, forehead and ribs. He was taken to hospital and admitted for operative treatment. The treating surgeon described the operative repair as including repairing broken bones through an incision across the top of the head with plates and screws holding the bones in position. The victim impact statement describes in some detail the consequences of the attack. The victim was unable to return to work for three months and has been left with long term emotional health issues.
It was agreed between the defendants and accepted by the Director that John Harkin was the initiator and the leader of the attack made on the victim. In short, it was accepted that John Harkin led his son, Brendan Harkin, into the criminal conduct. This arose partly from the relationship of father and son and partly as a consequence of Brendan Harkin’s young age – he was 19 years of age at the time.
Following the attack, footage of the incident allowing identification of the defendants was shown on television. After viewing this footage, the defendants attended the police station. In the course of interviews, both defendants gave a false account of John Harkin being attacked by the victim and as having acted in self-defence with the assistance of Brendan Harkin. Ms Harkin provided a similar false account to the police. The falsity of these accounts was later acknowledged. There was also a suggestion in those interviews that the defendants had attended Hungry Jacks to obtain the registration number of the victim’s motor vehicle so that a report could be made to the police. This assertion was later abandoned. It is difficult given these untrue statements to attach any weight to the statements made to the police by the defendants or Ms Harkin.
During sentencing submissions, counsel for John Harkin put to the Court that having heard his wife’s account of the earlier confrontation, he became very angry, “lost it” and jumped in his car. On arriving at Hungry Jacks, Ms Harkin identified the defendant and at this time, John Harkin was angry, was looking for a confrontation and “lost it”.
It was the prosecution case that the defendants set out from the Harkin home and at some point, either at the outset or later, formed the intention of taking the law into their own hands and of assaulting the victim with the intention of causing serious harm. The offence was aggravated because it was committed in the company of another. The prosecution case was that the conduct of both defendants was extremely serious criminal offending that called for the imposition of an immediate term of imprisonment.
The remarks of the sentencing Judge
The remarks of the sentencing Judge address the sentences to be imposed on both defendants. It is important to recognise the need for each defendant to be considered separately when considering an appropriate sentence. There were significant differences between their respective circumstances.
The Judge addressed the arrival of Mrs Harkin at home following her earlier confrontation with the victim:
Mrs Harkin drove off to her home, a very short distance away, and [the victim] drove on into the car park and went into Hungry Jack’s where he and his family were intending to have a meal. When Mrs Harkin and [Ms Harkin] arrived home Mrs Harkin appeared to the pair of you to be very distressed. Each of you believed that Mrs Harkin had been abused and physically manhandled by [the victim], whether or not that is true. Both of you were incensed at that, especially in light of the fact that Mrs Harkin was at the time suffering from numerous health problems, as she still is, unfortunately. Not too long after she arrived home the two of you went into a car with [Ms Harkin] and another young man to Hungry Jack’s.
You told the police that it was originally your intention only to try to obtain the registration number of [the victim’s] vehicle so that you could report to police what you perceived to be his assault upon Mrs Harkin. But when you arrived at Hungry Jack’s [Ms Harkin] pointed out to the pair of you that [the victim] was there and was apparently heading towards the men’s toilets. The two of you ran into the toilets where [the victim] had gone into a cubicle. You forced your way into the cubicle and set upon him violently, punching and kicking him a number of times. It was a vicious assault. You then decamped.
I accept that neither of you had any idea when you left how serious [the victim’s] injuries were. It seems that even [the victim] did not realise at first how seriously he had been injured, refusing to be taken by ambulance to hospital but eventually being driven there by police officers.
When addressing the defendants’ intentions, the Judge observed:
I do not lose sight of the fact that you have pleaded guilty to an offence of causing serious harm with intent to do so. The aggravating factor is that you were in company of each other. Counsel for you, John Harkin, submitted that you did not intend to cause the serious harm which you caused. While I accept that you did not intend to cause harm as severe as that which you caused, and while I accept that you did not intend to cause this particular harm, I sentence you, as I must, on the basis that each of you intended to cause some serious harm.
The Judge further remarked:
I sentence both of you on the basis that your offending is quite out of character. Angry at your genuine perception of Mrs Harkin’s ill treatment, the pair of you took the law into your own hands. The attack upon [the victim] was indeed vicious, as I have said. The fact that you have admitted, by your pleas, that you intended to cause him serious harm makes your crime especially serious.
There is no doubt that I must sentence both of you to a significant term of imprisonment and I shall do so. Because neither of you has ever been in any trouble with the law before, and because I feel very confident that you will stay out of trouble in the future, I propose setting a much lower non-parole period than I would have otherwise.
The Judge summarised the victim’s injuries and referred to the victim impact statements. The Judge, having determined the sentences and the non-parole periods to be imposed, turned to the question of suspension. In doing so, the Judge addressed the position of both defendants and observed:
Because you have both led blameless lives until this offending, because it was occasioned by your perception of a grave wrong done to your wife and mother, and because it seems on the material before me that you are highly unlikely to offend again, I have, after much hesitation, come to the conclusion that it is appropriate to give each of you a second chance. Accordingly, I shall suspend the sentences upon your entering into bonds, in the case of each of you, in your own recognisances in the sum of $200 to be of good behaviour for a period of two years. …
Appeals by the Director
The Director will be granted permission to appeal if it is necessary to enable the Court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or, if a sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”.[2] An error in the sentencing process may be inferred from a result that is manifestly unreasonable or plainly wrong, or by identifying the adoption by a sentencing Judge of an incorrect principle, the giving of weight to some extraneous or irrelevant matter, the failure to give weight to some material considerations, or, the making of a mistake as to the facts.[3]
[2] R v Nemer (2003) 87 SASR 168 at [22]-[24]; R v Osenkowski (1982) 30 SASR 212 at 212-213. See further and generally Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; Dinsdale v The Queen (2000) 202 CLR 321.
[3] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
On a prosecution appeal against a sentence, the court may take into account the consequence to an offender of reversing a decision to suspend a term of imprisonment. The consequences are to be balanced against the public interest in the proper administration of justice. However, hardship associated with such a reversal has been commonly taken into account by reference to the principle of double jeopardy.
The basis for the “rare and exceptional” test for Crown appeals lies with the principle of double jeopardy, as explained by the majority of the High Court in Everett:[4]
… An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed …
[footnote omitted]
[4] Everett v The Queen (1994) 181 CLR 295 at 299.
Earlier, in Malvaso, Deane and McHugh JJ noted that the Crown appeal against sentence:[5]
…represents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy…
[5] Malvaso v The Queen (1989) 168 CLR 227 at 234.
Furthermore, the discretion of a sentencing Judge in fixing a sentence is not to be interfered with lightly. As King CJ noted in Osenkowski:[6]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform…
[6] R v Osenkowski (1982) 30 SASR 212 at 212-213.
In a case where an offender has been given a non-custodial or suspended sentence, the appellate court will be particularly reluctant to interfere and impose a sentence of immediate imprisonment. In Hicks,[7] King CJ observed:[8]
…When a person…has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating…
[7] R v Hicks (1987) 45 SASR 270.
[8] R v Hicks (1987) 45 SASR 270 at 273. See also R v Hayes (1987) 29 A Crim R 452 at 469 (Kirby P).
Accordingly, a Crown appeal against suspension of sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied. Furthermore, an error must be identified before a sentence may be interfered with. As Kirby J explained in Dinsdale:[9]
… As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.
[footnote omitted]
[9] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340.
As earlier mentioned, such error may be inferred from a result that is manifestly unreasonable or plainly wrong. However, a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[10]
[10] Dinsdale v The Queen (2000) 202 CLR 321 at 339-340. See further the authorities on Crown appeals against sentence as set out in R v Marikar [2010] SASCFC 36.
The Court’s powers on appeals against sentence
The Court’s powers and duties on an appeal against sentence are set out in sections 353 and 340 of the Criminal Law Consolidation Act.
Section 353 relevantly provides:
(4) Subject to subsection (5), on an appeal against sentence, the Full Court must –
(a) if it thinks that a different sentence should have been passed -
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b) in any other case – dismiss the appeal.
(5)The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
Section 340, operative as from 3 August 2008 and introduced by section 5 of the Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA), provides:
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must –
(a) impose the sentence that should have been imposed in the first instance;
and
(b) order that the sentence -
(i)will be taken to have come into effect on a date before the date of the order;
or
(ii) will take effect on a date on or after the date of the order.
The principle of double jeopardy has historically been taken into account by an appeal Court in all stages of the appeal process in relation to an appeal against sentence by the Director of Public Prosecutions. That is, double jeopardy has been taken into account when assessing whether permission to appeal should be granted;[11] whether an appeal should be allowed;[12] and, when considering the sentence to be imposed if that imposed at first instance is quashed and the Court is resentencing the offender.[13]
[11] R v Marikar [2010] SASCFC 36 at [33-37]; R v Nemer (2003) 87 SASR 168 at [26]; Everett v The Queen (1994) 181 CLR 295 at 299; Malvaso v The Queen (1989) 668 CLR 227 at 234.
[12] R v Drewett (1983) 35 SASR 344 at 346.
[13] R v Mangelsdorf (1995) 66 SASR 60 at 71; Dinsdale v The Queen (2000) 202 CLR 321 at [62]; R v Elliott (2001) 121 A Crim R 254 at [96].
Notwithstanding its mandatory terms,[14] section 353(4)(a)(i) has been interpreted as still being subject to the application of the double jeopardy principle.[15] This has allowed the Court to resentence and impose a sentence which is in fact something less than or other than the sentence which the Court thinks ought to have been passed.[16]
[14] That is, by the use of the word “must”.
[15] R v Mangelsdorf (1995) 66 SASR 60.
[16] See for example R v Ivic [2006] SASC 8 at [56]-[57]; R v Robinson [2004] SASC 189 at [60]-[61] and [65]; R v Mangelsdorf (1995) 66 SASR 60 at 71. See also R v Meers (1998) 101 A Crim R 329 at 332-333.
The common law provides the Court, when resentencing, with the discretion to impose a different or lesser sentence than the sentence it thinks should have been imposed at first instance on a basis other than the principle of double jeopardy. This separate discretion is founded on notions of fairness or mercy.
On the hearing of the appeal, an issue arose regarding the effect, scope and interpretation of section 340 of the Criminal Law Consolidation Act, and in particular, its relationship to section 353(4) of the Act.
A purposive construction is the general approach to be taken to issues of statutory construction.[17] Further, it is settled that reference can be made to certain extrinsic materials in this inquiry, including second reading speeches.[18] The second reading speech relating to section 340 of the Criminal Law Consolidation Act, relevantly provides:[19]
Prosecution Appeals Against Sentence—Proposed Reform
The COAG Working Party concluded that although the courts have used the term 'double jeopardy' to describe the situation that a convicted person faces as a result of a prosecution appeal against sentence, the situation is different from the double-jeopardy faced by an acquitted person who again faces trial. An acquitted person who endures a retrial faces, for the second time, the prospect of being found guilty, whereas a convicted person enduring a prosecution appeal against sentence faces the less severe prospect that their sentence may be varied.
It is intolerable that prosecution appeals against sentence fail although the court is of the opinion that the sentence is inadequate. Although there can be no question of a court's micro adjusting sentences on appeal, equally, courts of appeal should not be affirming inadequate or erroneous sentences. The Bill therefore provides that, when a court is considering a prosecution appeal against sentence, no principle of sentencing double jeopardy should be taken into consideration by the court when determining whether to exercise its discretion to impose a different sentence, or in determining what sentence to impose.
This correction will not affect underlying principles that say:
· that prosecution appeals against sentence should be rare;
· that an appeal court will only intervene where error is shown; and
· that the court has a discretion to refuse to intervene even if error is established or to substitute a discounted sentence where re-sentencing does occur.
[17] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [88] (Kirby J); Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [35]-[36]. A purposive approach to statutory construction is also prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA):
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
[18] See for example K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [50]-[53] (French CJ).
[19] House of Assembly, Parliamentary Debates, Wednesday 13 February 2008, 2037 (The Honourable MJ Atkinson).
The second reading speech indicates that section 340 was designed to remove the issue of double jeopardy from consideration by the appeal Court. However, the words of the section make it clear that section 340 only imposes a duty on the Court at the point after the question of the grant of permission to appeal and the question of whether the appeal should be allowed, have been decided.
Section 340 precludes the Court from having regard to the “rule of law”, known as double jeopardy when resentencing. The words “Despite any other rule of law” should be presumed to have some work to do and should be given some meaning and effect.[20] In our view, the effect of section 340 is to remove from consideration any rule of law enabling a Court to impose, when resentencing, a sentence other than the sentence which the Court thinks ought to have been imposed at first instance.
[20] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
If sections 340 and 353(4)(a)(i) are read together, and given that it is to be presumed that section 340 has some work to do, that work, in our view, is to remove the Court’s ability to temper a sentence in recognition of the element of double jeopardy involved in twice standing for sentence.
The Appeal
The Director accepted that the head sentence of three years and the non-parole period of 18 months imposed on John Harkin were at the lowest end of the appropriate range given the circumstances of his offending. However, it was submitted that there was no proper basis upon which the sentencing Judge could find good reason to suspend the sentence.
The Director submitted that the Judge had regard to an irrelevant consideration when deciding to suspend John Harkin’s sentence. In particular, counsel contended that the following statement by the Judge did not identify a relevant consideration with respect to suspension: “…because [the offending] was occasioned by your perception of a grave wrong done to your wife…”.
It was said that this perception was not the principal cause of what occurred. It might provide an explanation for the decision of John Harkin to take the law into his own hands and to attack the victim with the view to causing serious harm. It was further contended that if this matter had any weight, it was not sufficient in combination with any other circumstance, to warrant the suspension of the sentence. Counsel for John Harkin accepted that John Harkin’s perception was not a matter of mitigation, did not justify in any way his conduct, did not excuse his conduct and, at best, provided an explanation for why he formed the intention to take the law into his own hands and cause serious harm to the victim. In short, it was accepted that the Judge had regard to an irrelevant factor or, alternatively, had given this factor inappropriate weight.
The criminal conduct of John Harkin was very serious. He, in the company of his son, sought out their victim and launched an unprovoked and vicious attack. John Harkin did so, taking the law into his own hands to effect some form of revenge for what he perceived to have been an inappropriate confrontation with Mrs Harkin. John Harkin assaulted his victim with the intent of causing him serious harm and did cause him serious harm. In order to be serious harm, it must be harm that endangers the victim’s life or that consists of or results in serious disfigurement of the victim.
Attacks in revenge threaten the security of our community. That security depends upon respect for the police and proper policing practices. The apprehension of offenders should be left in the hands of the police. This is an important aspect of our democratic society. Taking the law into one’s own hands undermines the manner in which our criminal justice system operates.[21]
[21] See for example Director of Public Prosecutions v Whiteside (2000) 1 VR 331; R v Sheekey [1996] EWCA 385.
In the present proceeding, the Judge did not make findings about what had occurred in the earlier confrontation between Mrs Harkin and the victim. It was agreed that this was the correct approach in circumstances where the Director accepted that the defendant had formed a belief based on his wife’s account of the occurrence. It must be said immediately that whatever view was taken of the confrontation, it did not in any way justify or excuse the attack that followed. At most, on the account of Mrs Harkin, it may have justified a report to the police and a possible investigation in regard to a minor incident. John Harkin’s conduct was wholly disproportionate to his belief as to what had occurred. His conduct on any view was not only criminal, but totally unacceptable. The head sentence and non-parole period imposed by the Judge were merciful indeed.
The Director submitted that the Judge should have considered the exercise of his discretion to suspend as a separate exercise in the case of each defendant. We agree. The dangers in a collective approach gave rise to the risk that the distinction between the two defendants would be blurred. We consider that the Judge’s approach led him into error. The exercise of the discretion to suspend in favour of Brendan Harkin was informed by different considerations – in particular, his age and his lesser role in the offending.
In our view, the Court should grant permission to the Director to appeal against the sentence imposed on John Harkin. In our view, having regard to the gravity of the conduct, the sentence imposed was manifestly inadequate and so much so as to shock the public conscience.
The attack by Brendan Harkin on the victim was brutal and callous. He and John Harkin took the law into their own hands. However, as noted above, the criminal culpability of Brendan Harkin was the lesser because he was led into the attack by John Harkin and further, because of his young age and immaturity.
Brendan Harkin was 19 years of age at the time of the offending and 21 at the time of sentencing. He lived at home with his parents. He completed year 11 at high school, but left during year 12 when work became available. Information before the Judge, which he accepted, suggested that Brendan Harkin had been an industrious worker. He was a first offender. Referees spoke well of him.
As noted above, when first spoken to by the police, Brendan Harkin joined with his father and sister in providing a false account of the incident. The falsity of this account was later acknowledged. Notwithstanding this history, the Judge accepted that Brendan Harkin bitterly regretted his conduct.
In our view, the sentence imposed on Brendan Harkin was manifestly inadequate. Our particular concern arises from the terms of the bond entered into by Brendan Harkin with respect to the suspended sentence.
Resentencing – John Harkin
At the time of the offending, John Harkin was in his mid-forties, in employment and in a stable family with responsibilities for the care of his wife who was in poor health. He had an unblemished record and was of good character. However, regard to the gravity of John Harkin’s conduct called for the imposition of a term of imprisonment. We would impose the same head sentence and non-parole period as imposed by the sentencing Judge; that is, a head sentence of three years and a non-parole period of 18 months.
Regard to the gravity of John Harkin’s conduct, in our view, precludes a suspension of the sentence of imprisonment. In particular, his conduct of taking the law into his own hands calls for the clearest statement from this Court that such conduct is foreign to our society and its principles, and is not to be tolerated. We do not consider that good reasons exist to suspend the sentence. We would decline to exercise our discretion to do so.
Resentencing – Brendan Harkin
Having regard to the circumstances of Brendan Harkin’s offending and the fact that at the time he acted under the influence of his father, we consider that the head sentence and the non-parole period imposed by the sentencing Judge, that is, a head sentence of two years and three months and a non-parole period of 12 months, are appropriate.
Given the gravity of the conduct of Brendan Harkin, although we consider that the exercise of the discretion to suspend was appropriate, we consider that the terms of the suspended sentence bond imposed by the Judge did not reflect the seriousness of the offence or the need to address or support the rehabilitation of the defendant. We are of the view that a two year unsupervised bond did not address the seriousness of the defendant’s conduct and his particular circumstances.
Brendan Harkin’s youth, immaturity and vulnerability to influence distinguish him from his father. It is these factors together combined with his unblemished record and evident regret, which provide good reason to suspend the sentence of imprisonment imposed. It is the same factors, however, which call for a longer term bond and one with conditions. The defendant needs to understand the gravity of his conduct, and the community service which we will order to be served partly reflects this need.
The sentence to be imposed on Brendan Harkin should be suspended on his entry into a three year supervised good behaviour bond. It would assist the rehabilitation of Brendan Harkin that he undergo a course with respect to anger management. We expect that his supervising Correctional Services Officer may also see a need for the undertaking of other courses designed to assist and aid his rehabilitation. We would include in the terms of his bond, a condition that he undertake 200 hours of community service.
Conclusion
We would grant the Director permission to appeal in respect of both sentences. We would allow both appeals, and set aside each of the sentences imposed by the Judge.
We would resentence John Harkin to a term of imprisonment of three years. We would fix a non-parole period of 18 months. We would decline to suspend the sentence of imprisonment.
We would resentence Brendan Harkin to a term of imprisonment of two years and three months. We would fix a non-parole period of 12 months. We would suspend that term of imprisonment on his entry into a three year good behaviour bond, that bond being supervised for a period of 12 months. Conditions of the bond should include the obligation to undertake such courses as may be directed, including courses directed to anger management. The bond should include a condition that Brendan Harkin perform 200 hours of community service.
WHITE J. Following their pleas of guilty, the respondents (who are father and son) were sentenced in the District Court for the offence of aggravated causing serious harm with intent to cause serious harm.[22] The respondents had committed the offence jointly and were charged on a joint information.
[22] Contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
In the case of the father, John Harkin, the Judge took as a starting point a sentence of imprisonment for four years. He reduced that sentence to three years on account of the plea of guilty and fixed a non‑parole period of 18 months. In the case of the son, Brendan Harkin, the Judge took as a starting point a sentence of three years and reduced that period to two years and three months on account of his plea of guilty. He then fixed a non‑parole period of 12 months.
The Judge ordered that each sentence be suspended upon the respective respondents entering into a bond in the sum of $200 to be of good behaviour for a period of two years.
The Director of Public Prosecutions seeks permission to appeal against both sentences. The Director does not impugn the head sentence or the non‑parole period in either case. His contention is only that the Judge erred in ordering the suspension of each of the sentences.
Circumstances of the Offence
On Saturday, 8 August 2009 at about 5.30 pm, the victim drove his 4WD into the entrance to the carpark of the Hungry Jacks restaurant at Ridgehaven. He had his wife and three year old granddaughter with him. The victim’s entrance into the carpark was obstructed by a utility which was exiting the carpark. This utility was driven by the Mrs Harkin, the wife and mother respectively of the respondents. She had her 15 year old daughter and her teenage friend with her.
The victim considered that Mrs Harkin had unnecessarily turned too widely in the carpark entrance, thereby obstructing his passage. An unpleasant interchange occurred with each of the victim and Mrs Harkin directing verbal abuse, including profane language, at the other. At one stage the victim alighted from his 4WD and approached Mrs Harkin who remained seated in her utility. The witnesses gave differing accounts as to what then occurred. It was not necessary for the Judge to resolve those differences. At the least, it seems that the victim continued to be abusive to Mrs Harkin, and she to him. While that was happening, Mrs Harkin’s daughter alighted from the utility and also abused the victim. Eventually, the victim returned to his vehicle and parked it. He then entered the restaurant with his wife and granddaughter. Mrs Harkin drove to her home at nearby Hope Valley.
The whole incident was unnecessary. It was marked by a lack of the civility and courtesy which should be an ordinary expectation in the community. Both the victim and Mrs Harkin appear to have modelled poor behaviour to the children accompanying them.
When Mrs Harkin arrived at her to her home she was distressed. She told the two respondents of what had occurred. The respondents were incensed, believing (as the Judge accepted) that Mrs Harkin had been manhandled during the incident. After consuming their takeaway meal, the two respondents, the 15 year old daughter and a friend of Brendan drove to the Hungry Jacks restaurant.
John Harkin told the police that his intention was to obtain the registration number of the victim’s 4WD so that he could report his conduct. However, although seeing the 4WD in the carpark, he did not write down the registration number. Brendan Harkin told the police that he and his father had decided to go to the restaurant in order to ask the victim what had happened. They did not do that either. When they arrived, the 15 year old daughter identified the victim as he walked to the restaurant’s toilet. Thereupon, the two respondents ran into the restaurant and followed the victim.
In the toilet, the victim had entered a cubicle. John Harkin forced open the cubicle door with a kick and punched the victim repeatedly to his head and face. Brendan leant over the top of the cubicle wall and also punched the victim. The victim dropped to the floor to protect himself. Both respondents then kicked him to the head, face and body. The incident was accompanied by considerable noise.
At the conclusion of the assault, both respondents ran from the restaurant to their car and left the vicinity immediately.
The assault was brutal and vicious. It was also cowardly because it was committed in circumstances in which the victim had little scope to defend himself. The brutality of the assault was magnified by the fact that it took place in a restaurant patronised by family groups who, although not seeing the assault itself, could hear its associated noise, and saw its aftermath when the victim emerged from the toilet.
The victim suffered very serious injuries, including multiple facial fractures and fractures of his ribs. He needed extensive cranio-facial surgery, including the insertion of several metal plates for the repair of the fractures. The victim has had a long recuperation and was off work for three months. In addition, the injuries, and the circumstances in which they were inflicted, have left him with a number of psychological effects.
The respondents’ identity as the assailants was not known at the time of the offence, and the police could not locate them. However, their images were captured on the restaurant’s closed circuit television. This footage was aired on public television on the evening of Wednesday, 12 August 2009. Shortly afterwards, the respondents went voluntarily to the police and identified themselves as the participants in the incident.
When interviewed by the police, each respondent gave an account suggesting that the victim had been the aggressor in the incident in the toilet cubicle and that they had, essentially, been acting in self‑defence. By the time of the sentencing submissions, this claim had been abandoned. Similarly, counsel for John Harkin did not press the claim that he had gone to the restaurant simply to obtain the registration number of the victim’s vehicle. Instead it was submitted that each of the respondents had simply lost control when the victim was identified to them.
John Harkin was aged 44 years at the time of the offence and 45 years when sentenced. Brendan Harkin was 19 years of age at the time of the offence and 20 when sentenced. Both men had blemish free records. The Judge accepted that both were otherwise of good character and that both were steady, hardworking members of the community.
The Judge accepted that both men were genuinely sorry for the suffering which they had inflicted on the victim and on his family and that it was to their credit that they had voluntarily identified themselves to the police. Further, the Judge accepted that Mrs Harkin had, for some time before August 2009, suffered an illness which made her particularly dependent, both physically and emotionally, upon her husband.
The Judge said:
I sentence both of you on the basis that your offending is quite out of character. Angry at your genuine perception of Mrs Harkin’s ill treatment, the pair of you took the law into your own hands. The attack upon [the victim] was indeed vicious, as I have said. The fact that you have admitted, by your pleas, that you intended to cause him serious harm makes your crime especially serious.
There is no doubt that I must sentence both of you to a significant term of imprisonment and I shall do so. Because neither of you has ever been in any trouble with the law before, and because I feel very confident that you will stay out of trouble in the future, I propose setting a much lower non‑parole period than I would have otherwise.
In relation to the suspension of the two sentences the Judge said:
Counsel for each of you has submitted that it is appropriate for me to exercise my discretion to suspend those sentences of imprisonment. I have found that a particularly difficult issue in this case. On the one hand, both of you have shown that you are industrious men with a sense of purpose, community-minded, family-minded, who have never been in trouble with the law.
On the other hand, you have admitted, by your pleas, to causing serious harm to [the victim] all the while intending to cause such harm, and you did indeed cause serious harm. …
Because you have both led blameless lives until this offending, because it was occasioned by your perception of a grave wrong done to your wife and mother, and because it seems on the material before me that you are highly unlikely to offend again, I have, after much hesitation, come to the conclusion that it is appropriate to give each of you a second chance. Accordingly, I shall suspend the sentences upon your entering into bonds, in the case of each of you, in your own recognizance in the sum of $200 to be of good behaviour for a period of two years.
It is apparent from these remarks that the Judge suspended the sentence because of the good character of each of the respondents; because their offending was occasioned by their perception that a grave wrong had been done to Mrs Harkin; and because he thought it unlikely that either would offend again.
A Prosecution Appeal
The authorities indicate that this Court should grant permission to the Director to appeal against sentence “only in the rare and exceptional case”.[23] The principles to be applied on such an application are well established.[24] In R v Nemer Doyle CJ said:
The High Court has determined that the court should grant leave to the Director to appeal against sentence “only in the rare and exceptional case”: Everett v The Queen (1994) 181 CLR 295 at 299.
The result of the principles established by the High Court is that to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”: see The Queen v Osenkowski (1982) 30 SASR 212 at 212‑213 King CJ; Everett at 300. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.[25]
These are the principles which are to be applied in relation to the present applications.
[23] Everett v The Queen (1994) 181 CLR 295 at 299.
[24] Ibid; Malvaso v The Queen (1989) 168 CLR 227 at 233; R v Osenkowski (1982) 30 SASR 212 at 212-213; R v Nemer [2003] SASC 375 at [23]-[27]; (2003) 87 SASR 169 at 172-4.
[25] R v Nemer at [23]-[27], 172-4.
Director’s Submissions Concerning Errors of a Factual Kind
Counsel for the Director contended that the Judge had made errors of a factual kind and, in addition, had erred in regarding the respondents’ motive for the offence as mitigatory. It is convenient to consider the former first.
Counsel submitted first that the Judge had misunderstood the evidence about the nature of the interchange between the victim and Mrs Harkin. In referring to that interchange the Judge said:
On some versions of the facts given by the witnesses there was a physical confrontation between [the victim] and Mrs Harkin, during which you shook her. I do not know if that is correct. But the road rage incident was sufficiently serious for other bystanders to call the police.
Counsel pointed out that the only witness who suggested that the victim had shaken Mrs Harkin was the 15 year old daughter, that being a statement made when she was interviewed by the police. However, there was other evidence indicating that some physical contact may have occurred. In his deposition the victim said:
The females approached me whilst continuing to abuse me. … As the females reached me, I fended them off, pushing them back away from me slightly. They continued to abuse me and I continued to fend them off. This continued for a minute or two before both of the females got back into the utility …
(Emphasis added)
Accordingly, while only one witness spoke of the victim “shaking” Mrs Harkin, the Judge was correct in stating that on some versions of the facts there had been a physical confrontation between the victim and Mrs Harkin.
Further, the Judge recognised, correctly, that it was not necessary to make factual findings about what had occurred in the incident. What was more important was the belief of the respondents in that respect.
Secondly, counsel submitted that the Judge had failed to distinguish adequately between the circumstances of the two respondents. The Judge should, it was said, have considered the possible suspension of the sentence in each case separately, taking into account the different personal circumstances of each respondent, and the differences in their culpability. Counsel submitted that the Judge had, instead, addressed the question of suspension in a collective way.
In support of this submission, counsel referred to a passage in the sentencing remarks in which the Judge described the respondents’ purpose in going to the restaurant, saying:
You told the police that it was originally your intention only to try to obtain the registration number of [the victim’s] vehicle so that you could report to police what you perceived to be his assault upon Mrs Harkin.
Counsel pointed out that it was only John Harkin who had made that claim. He submitted that the Judge’s attribution of the same claim to Brendan Harkin illustrated the Judge’s failure to differentiate between the circumstances of the two respondents.
Counsel submitted that the culpability of John Harkin was greater than that of his son. John Harkin had instigated the assault, he had been the first into the toilet, he had influenced his son to participate and, unlike Brendan, his conduct could not be explained in part by the immaturity of youth.
I agree that John Harkin’s culpability was greater than that of his son. Counsel is also correct in contending that the Judge did not refer explicitly to these distinguishing features. On the other hand, it is plain that the Judge did distinguish between the two respondents and that he did regard the culpability of John Harkin as being greater. That explains the higher head sentence and the higher non-parole period imposed on John Harkin. That being so, I am not willing to conclude that the Judge overlooked the same features when he considered the question of suspension.
It is true that the Judge attributed to both respondents John Harkin’s statement of his purpose in going to the restaurant, even though Brendan Harkin had claimed a different purpose. However that is a minor error, and it is plain from the context that the Judge viewed John Harkin’s claim with some scepticism. As previously noted, counsel for John Harkin did not during the course of sentencing submissions press the claim that his client had gone to the restaurant simply to obtain the registration number.
Next, counsel noted the three matters to which the Judge referred in finding that there was good reason to suspend each of the sentences. He submitted that the Judge had been wrong in accepting, as a matter of fact, that the respondents’ conduct had been occasioned by their perception that a “grave wrong” had been done to Mrs Harkin.
I do not consider that the Judge made the factual error imputed to him. During the course of the sentencing submission the prosecutor accepted that it was appropriate for the Judge to sentence the respondents on the basis that they believed the account given to them by Mrs Harkin, to the effect that she had been manhandled by the victim, without having to decide whether or not that account was correct. It was the respondents’ subjective perception of what had been done to Mrs Harkin which explained their conduct. That being so, I see little point in considering whether, on an objective assessment, the victim’s conduct in relation to Mrs Harkin could be characterised as a “grave wrong”.
The Respondents’ Motive was not Mitigatory
As previously noted, the Judge gave as one reason for suspending the two sentences his acceptance that the offending had been occasioned by the respondents’ perception that a grave wrong had been done to Mrs Harkin.
Counsel for the Director submitted that the Judge had been wrong to regard this consideration as mitigatory.
The Judge’s conclusion about the respondents’ motive for their offending seems to involve implicitly a finding that the respondents were engaged in an act of revenge or retribution. The Judge’s understanding in that respect is well supported by the evidence.
The respondents’ motive was relevant in a number of ways to the sentencing: it indicated that the assault was not simply a random or gratuitous act of violence or committed to facilitate the commission of some other crime; it bore upon the extent to which the sentence should reflect considerations of deterrence; and it bore upon the prospects of repetition.
However, the fact that the respondents were engaged in an act of revenge or retribution cannot be regarded as mitigatory. A society subject to the rule of law cannot tolerate or condone private retribution or revenge taking. Such conduct is outside the law. The Courts have repeatedly stated the role of the criminal law in denouncing and deterring such conduct. The criminal law exists to protect the community and that includes protection of the community from private revenge taking.
The Courts have also emphasised that it is wrong, in circumstances of the present kind, to speak of offenders taking the law into their own hands.[26] On the contrary, such conduct is itself criminal, and is therefore outside the law.
[26] R v Elmir [2003] NSWCCA 192 at [20]; Lovell v The Queen [2006] NSWCCA 222 at [70].
The firm attitude which should be taken by the Courts to discourage acts of private retribution is seen in a number of authorities. In Barlow v The Queen[27] Hall J, with whom McClellan CJ at CL and Price J agreed said:
The nature of the conduct by the applicant could be correctly identified in the remarks on sentence as having been in the nature of “vigilante” conduct. The seriousness of the offence in question, despite the purpose or motivation having been revenge for the alleged sexual assault by the victim upon her some six years before, involved a deliberate course of conduct, in company with another, whereby the applicant decided to act outside the law in seeking retribution for what she alleged had been done to her by the victim. Such conduct, as the sentencing Judge correctly identified, is the antithesis of what is required in a society based on the rule of law and is to be denounced in the strongest terms.[28]
Similarly, in R v Mitchell Howie J said:[29]
But a grievance with the conduct of another, whether justified or not, cannot be a licence to commit crime even where the conduct alleged by the victim is one of sexual assault. In the circumstances of the present case the motive of the respondents for assaulting the victim was of limited mitigating value.[30]
Howie J spoke again of the law’s role in deterring the taking of private retribution when he said in R v Dole:[31]
Nor do I appreciate how the motive was “perfectly understandable”, to quote the sentencing Judge. The Court should give no countenance to such conduct whatever the motivation for it. It is an anathema to the rule of law, which the courts seek to enforce, to have persons like the respondents deciding guilt and punishment upon a member of the community. The sentence needed to be a significant one for the purpose of general deterrence regardless of the subjective cases of the two respondents.[32]
[27] [2008] NSWCCA 96; (2008) 184 A Crim R 187.
[28] Ibid at [40], 195.
[29] [2007] NSWCCA 296; (2007) 177 A Crim R 94.
[30] Ibid at [30], 101.
[31] [2010] NSWCCA 101.
[32] Ibid at [4].
Finally, I agree, with respect, with the following observations of Latham J concerning the role of the criminal law in maintaining respect for the rule of law:
The rule of law is the mark of a civilised society. It allows all of its citizens to live under its protection, confident and secure in the knowledge that if punishment is to be meted out for criminal behaviour, it will only be justified by the observance of the due process of the law. The respect of the community for the rule of law is essential to its maintenance. For these reasons, the penalty must reflect the law’s denunciation of acts of violence carried out by some members of the community against others, in the name of revenge or retribution, no matter how horrid the behaviour of those sought to be summarily punished.[33]
[33] R v Willetts and Gurney [2009] NSWSC 1201 at [13].
The remarks just quoted confirm that criminal conduct for the purpose of meting out revenge or retribution should not be tolerated, and that considerations of both personal and general deterrence must be prominent in the sentencing when such conduct comes before the courts. In these circumstances, the fact that the present respondents acted in someway to assuage the family honour, or to punish the victim for his conduct in relation to Mrs Harkin, cannot be regarded as mitigatory. On the contrary, it served to emphasise the need for a severe sentence which would operate as both a personal and general deterrent.
As noted above, the Judge does appear to have regarded the particular motive of the respondents as a mitigatory matter. In my respectful opinion, he was wrong in doing so. This means that this Court should reconsider the sentencing discretion involved in the decision to suspend.
Approach to Re-sentencing
The High Court has said that once an appellate court concludes that the sentencing discretion has miscarried in a way which affects one element of a sentence, the whole sentence should be set aside and the offender re-sentenced fresh.[34] However, in the present case the Director impugned only the decision of the Judge to order the suspension of each of the sentences. He did not challenge either of the head sentences or the non-parole period and did not suggest that if this Court re-sentenced, it should revisit those aspects of the sentence. Accordingly, on re-sentence I would impose on each respondent the same head sentence and non-parole period as did the Judge.
[34] McGarry v The Queen [2001] HCA 62 at [9], (2001) 207 CLR 121 at 126; Strong v The Queen [2005] HCA 30 at [25], (2005) 224 CLR 1 at 13.
Counsel for the Director also referred the Court to s 340 of the CLCA which provides:
340—Appeal against sentence
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—
(a) impose the sentence that should have been imposed in the first instance; and
(b) that the sentence—
(i)will be taken to have come into effect on a date before the date of the order; or
(ii)will take effect on a date on or after the date of the order.
The effect of s 340 is that when this Court re-sentences, following a successful appeal, the Court must impose the sentence which should have been imposed in the first instance.
Section 340 was introduced into the CLCA with effect from 3 August 2008 by s 5 of the Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA). Its content is similar (relevantly) to s 353(4) of the CLCA which has been in its present form since 2004. Section 353(4) provides:
353—Determination of appeals in ordinary cases
(4) Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a) if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for re-sentence; or
(b) in any other case—dismiss the appeal.
Despite the apparently mandatory language of s 353(4)(a), this Court (together with the Courts of Criminal Appeal in the other States in relation to comparable provisions) have regarded it as operating subject to the common law principles of double jeopardy.
In my opinion, it is not possible to construe s 340 in the same way. Some significance must be given to the commencing words “despite any other rule of law”. They indicate that s 340 is intended to change the existing law. That intention is confirmed by reference to the second reading speeches relating to the introduction of s 340. When the Criminal Law Consolidation (Double Jeopardy) Amendment Bill 2008 was first introduced into the House of Assembly, the proposed s 340 was in the following form:
Despite any other rule of law, if, on an appeal against sentence brought by the prosecution, the Court is satisfied that the sentence should be quashed and a more severe sentence substituted, the Court may substitute a more severe sentence even, if in so doing, the Court may be exposing the convicted person to a form of double jeopardy.
In relation to that proposal the Attorney-General said:
It is intolerable that prosecution appeals against sentence fail although the Court is of the opinion that the sentence is inadequate. Although there can be no question of a court’s micro-adjusting sentences on appeal, equally, courts of appeal should not be affirming inadequate or erroneous sentences. The Bill therefore provides that, when a court is considering a prosecution appeal against sentence, no principle of sentencing double jeopardy should be taken into consideration by the Court when determining whether to exercise its discretion to impose a different sentence, or in determining what sentence to impose.[35]
This correction will not affect underlying principles that say:
· That prosecution appeals against sentence should be rare;
· That an appeal court will only intervene where error is shown; and
· That the court has a discretion to refuse to intervene even if error is established or to substitute a discounted sentence where re-sentence does occur.
[35] South Australia, Parliamentary Debates, House of Assembly, 13 February 2008, 2040, Michael Atkinson, Attorney-General.
This passage makes it plain that the proposed s 340 was directed to the principle of double jeopardy.
During the course of the debate in the Legislative Council of the Amendment Bill, s 340 was changed to the form in which it was ultimately enacted. In explaining the amendment, the Minister for Police said:
The policy of the Government on this point is clear, and it is that there is not a question of double jeopardy here nor should the sentence be discounted. The Court on prosecution appeals against sentence will interfere with the original sentence only in exceptional cases. It will interfere when there is some point of principle; it will interfere where there is manifest inadequacy; and it will interfere where the sentence is such as to shock the public conscience. These criteria are well established.
Once that initial threshold is reached, there should be no question of discount just because it happens to be an appeal. While the policy is clear, the way to deal with it in statutory words without unintended or unenforceable consequences is not so clear. There are no successful models to follow.
The clause in the Bill is introduced into the Council receive late comment. We have done our best to address those comments. This Bill is proposed as a compromised wording.[36]
[36] South Australia, Parliamentary Debates, Legislative Council, 9 April 2008, 2370, Paul Holloway, Minister for Police.
The terms of s 340 as enacted make it plain that it operates in relation to a prosecution appeal only when this Court has decided, in accordance with existing law, to grant permission to the Director to appeal, to allow the appeal, and to re‑sentence. It is in the re-sentencing that the Court is to ignore any considerations arising from the law’s aversion to double jeopardy and to impose the sentence which should have been imposed at first instance.
In the present case, the effect of s 340 therefore is to require the Court, if it considers it appropriate to re-sentence, to make the decision concerning suspension which it considers should have been made at first instance. Section 340 does not, however, change the approach to be applied in determining whether permission to appeal should be granted to the Director, or whether the Court should intervene so as to re-sentence.
Re-sentence – John Harkin
As previously indicated, I will proceed on the basis that a head sentence of three years imprisonment with a non-parole period of 18 months is appropriate in the case of John Harkin.
The Court can order the suspension of this sentence if there is good reason to do so.
There are a number of mitigatory features present in John Harkin’s case. He is now 45 years old and has an excellent record. As the Judge found, he is a hardworking, industrious and responsible member of the community. He is a member of a close-knit and supportive family. His referees speak well of him. The evidence does suggest that his wife is particularly dependent on him.
On the other hand, the offence committed on 8 August 2009 was very serious. It involved not only the infliction of serious harm but the intention, at the time of the assault, to inflict such harm.
The assault on the victim was wholly disproportionate to the respondents’ perception of the wrong done to Mrs Harkin. The victim sustained very serious injuries.
There are other aggravating features. The offence involved an element of premeditation as John Harkin drove with his son and others from their home to the restaurant to search for the victim. He had an opportunity to reflect on the situation. The offence was committed in close proximity to children in the restaurant who would have undoubtedly heard the noise associated with it, and have seen the victim when he emerged from the toilet.[37] The fact that John Harkin was intent on effecting retribution indicates that considerations of both personal and general deterrence are important.
[37] Cf Criminal Law (Sentencing) Act 1998 (SA) s 10(1) (ed).
It is unfortunate that a man of John Harkin’s good record and otherwise good character should be imprisoned, but when regard is had to all the circumstances, I do not consider that there is good reason to suspend the sentence.
In considering whether permission should be granted to the Director, and the appeal allowed, to give effect to this conclusion, I have had regard to the principles concerning prosecution appeals to which I referred earlier. As I have said, s 340 does not preclude that regard. I take into account that a refusal by this Court to order suspension is a significant decision for John Harkin. As King CJ pointed out in R v Hicks,[38] when defendants are told that they will not have to go to prison, a great load is lifted from their minds, and the consequences of reversing that intimation may be devastating.[39]
[38] (1987) 45 SASR 270.
[39] Ibid at 273.
Nevertheless, I consider that the circumstances of this offence were so serious that this Court should grant permission to appeal, sentence John Harkin to imprisonment for three years with a non‑parole period of 18 months, and refuse to order the suspension of that sentence.
Re-sentence – Brendan Harkin
I proceed on the basis that a sentence of two years and three months with a non‑parole period of 12 months is appropriate in the case of Brendan Harkin.
Many of the considerations mentioned in relation to John Harkin also apply in the case of Brendan. However there are three particular features which distinguish his case from his father’s.
The first is that his culpability in the offending was less than his father’s. The difference in the head sentence and the non-parole period reflect that different culpability.
The second is his relative youth. He was only 19 at the time of the offence. This Court has said on many occasions that it is a serious matter to imprison a young offender.[40] Brendan Harkin otherwise had a good record and the prospects for a successful rehabilitation without him having to serve time in custody appear good.
[40] See, for example, R v McGaffin [2010] SASCFC 22 at [69] and the cases cited therein.
The third factor is that Brendan Harkin participated in the offence under the influence of his father. That influence diminishes his culpability to some extent. See, for example, R v S; ex parte Attorney-General (Qld);[41] Likiardopoulos v The Queen;[42] and R v Japaljarri.[43]
[41] [1999] QCA 398 at [18].
[42] [2010] VSCA 344 at [170]-[173].
[43] [2000] VSC 466 at [32]-[34].
These circumstances do indicate that, despite the serious nature of the assault and need for the sentence to reflect considerations of both personal and general deterrence, there is good reason to suspend the sentence imposed on Brendan Harkin.
Accordingly, I would re-sentence Brendan Harkin to imprisonment for two years and three months and fix a non-parole period of 12 months. I would suspend that sentence upon him entering into a bond to be of good behaviour for a period of three years. I also consider that the bond should contain additional conditions. During the first year of the bond Brendan Harkin is to be subject to the supervision and directions of a Community Corrections Officer and during the first 18 months is to perform 200 hours of community service.
Summary
For the reasons stated above, I would grant the Director permission to appeal in both cases. I would allow both appeals and would set aside each of the sentences imposed by the Judge.
I would sentence John Harkin to imprisonment for three years and would fix a non‑parole period of 18 months. The sentence is to commence immediately. I would not suspend that sentence.
I would sentence Brendan Harkin to imprisonment for two years and three months and fix a non-parole period of 12 months. That sentence is to commence immediately. I would suspend the sentence upon Brendan Harkin entering into a bond to be of good behaviour for a period of three years and to comply with the following conditions. During the first twelve months of the bond he is to be subject to the supervision, and obey the directions, of a Community Corrections Officer (including directions as to the courses he should undertake) and, during the first 18 months of the bond, is to perform 200 hours of community service.
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