(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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Harkin [2011] SASCFC 24
Case
[2011] SASCFC 24
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions appealed against sentences imposed by the District Court on John Harkin and Brendan Harkin, father and son, who had pleaded guilty to aggravated causing serious harm with intent. The sentencing judge had imposed terms of imprisonment of three years with an 18-month non-parole period for John Harkin, and two years and three months with a 12-month non-parole period for Brendan Harkin. Crucially, the judge ordered that both sentences be suspended upon the defendants entering into two-year unsupervised good behaviour bonds. The prosecution's appeal focused solely on the judge's discretion to suspend these sentences, arguing they were manifestly inadequate given the serious nature of the offence, which involved a revenge attack.
The appellate court was required to determine whether the sentencing judge erred in exercising their discretion to suspend the sentences of imprisonment. This involved considering the principles applicable to prosecution appeals against sentence, particularly in light of section 340 of the Criminal Law Consolidation Act 1935 (SA), and the appropriate approach to resentencing when the original sentences are deemed inadequate. The court also had to assess whether the judge adequately distinguished between the circumstances of the father and son, and whether any factors considered in favour of suspension were given inappropriate weight, such as the motivation for the offending conduct.
The court found that the sentencing judge had failed to adequately differentiate between the two defendants and had given inappropriate weight to the motivation for the offending conduct, treating it as a mitigatory factor when it was part of a revenge attack. Consequently, the sentences imposed were considered manifestly inadequate. The court allowed the appeals, set aside the original sentences, and resentenced John Harkin to a term of imprisonment of three years with a non-parole period of 18 months, declining to suspend the sentence. Brendan Harkin was resentenced to a term of imprisonment of two years and three months with a non-parole period of 12 months, with the sentence to be suspended upon his entry into a three-year supervised good behaviour bond, which included a condition for 200 hours of community service and undertaking anger management and other rehabilitation courses.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
WHITE J
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. 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.