R v HARVEY

[2011] SASCFC 69

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HARVEY

[2011] SASCFC 69

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Kourakis and The Honourable Justice Peek)

29 July 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

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

Appeal against sentence - appellant sentenced for two groups of offences in the District Court - in relation to one offence the sentencing judge was misled by the prosecutor as to the maximum penalty - whether sentence imposed in relation to each set of offences manifestly excessive - whether non-parole period for both offences manifestly excessive.

Held:  appeal allowed, appellant re-sentenced.

Criminal Law Consolidation Act 1935 (SA) s 139; Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.

R v HARVEY
[2011] SASCFC 69

Court of Criminal Appeal:  Vanstone, Kourakis and Peek JJ

1. VANSTONE J:     The appellant stood for sentence in the District Court for two groups of offences, which I shall call the 2008 and the 2009 offences.  In respect of one of the 2008 offences, the learned sentencing judge was misled, on the high side, as to the applicable maximum penalty.  The judge imposed one sentence for the 2008 offending and ordered that the single sentence imposed for the 2009 offences be served cumulatively upon it.  In his sentencing remarks the judge did not refer to the applicable maximum penalties.

2. The appellant argues that the sentence for the 2008 offences is manifestly excessive, pointing to the likelihood that the incorrect maximum was relied upon, and arguing that the credit given for the pleas of guilty was inadequate.  In respect of the 2009 offences, it is argued that the single sentence was manifestly excessive.  The non-parole period fixed in relation to the total is also said to be excessive, but only because it was imposed in relation to two head sentences, each said to be excessive.

   Background

3. The 2009 offences were two counts of attempting to dissuade a witness, committed on 9 and 13 August 2009.  The judge described them as “not the most serious offences of their kind”.  The appellant twice telephoned a man with whom there had been a dispute and whom an associate had assaulted.  He asked him what was to be done to get the charges dropped and how much it would cost.  He told him that if he did not agree, the man would have to live with the consequences.  The judge rightly took that as a threat.

4. The appellant pleaded guilty to each count.  The maximum penalty for an offence of that type is seven years imprisonment.

5. The 2009 offences were in breach of a bond entered into on 13 June 2008 in the Magistrates Court after pleas of guilty to damaging property, being unlawfully on premises and carrying an offensive weapon.  The bond required the appellant to come up for sentence if called upon.  The offences occurred on one occasion on 12 June 2008.  The victim was at her home in company with her daughter when she heard a loud banging coming from the front door.  She heard a male voice shouting from the front porch to be let in.  She later found that the security door and doorbell had been damaged.  Shortly afterwards the appellant was found nearby, carrying a large steel pole, and was apprehended.  The appellant pleaded guilty to the offences on the following day when he appeared in the Magistrates Court.

6. The sentencing judge was told by prosecuting counsel then appearing that the maximum penalty for damaging property where the damage was under $2,500 was ten years imprisonment, whereas it was two years.  (The greater maximum penalty did not come into force until 20 December 2009.)

7. The sentence imposed for the 2008 offences was one of two years imprisonment, the judge having allowed six months credit for the pleas.  For the 2009 offences one sentence of two years and one month was imposed, after credit of five months for the pleas of guilty was given.  The sentences were to be served cumulatively, giving a total period of four years and one month.  A non-parole period of two years and seven months was indicated.  However, both the total head sentence and the non-parole period were reduced by a period of fifteen months and one week on account of time in custody on remand.  The sentence was ordered to commence on the day it was imposed, being 4 March 2011.

8. The appellant is 36 years of age and has an extensive criminal history.  In his sentencing remarks, the judge outlined longstanding difficulties with drugs and alcohol faced by the appellant and steps taken by him towards his rehabilitation.

   Analysis

9. In my mind the sentences imposed by the judge for both groups of offences were, on their face, unexceptional.  The appellant complained of an inference apparently drawn by the judge to the effect that the 2008 offences were committed for the purpose of enabling the appellant to intrude onto the premises, but I consider that inference was available to the judge.  The incident must have been a frightening one for the occupants of the house.  Although some judges might have given more discount for the exceptionally early pleas of guilty, a discount of some 20 per cent was within the discretion of the judge.

10. However, as Ms L Boord, for the respondent concedes, there is a real risk that the judge was misled by the advice of the counsel for the prosecution that the maximum penalty for the damaging property offence was not two but ten years.  Since the judge made no mention of any of the maxima in his remarks, it seems not unlikely that he accepted at face value what he was told.  In those circumstances I consider that the appeal should be allowed and the appellant re-sentenced.

11. In my view the sentence imposed for the 2009 offences was moderate.  Any attempt to interfere with the course of justice is serious.  The fact that the maximum penalty for such offences is seven years imprisonment demonstrates the way in which Parliament regards the commission of such offences.  That there were two such attempts in this case demonstrates a certain determination and speaks against impulsiveness.  Additionally, each was committed in defiance of the 2008 good behaviour bond.  There is no reason to interfere with the judge’s assessment of the seriousness of those offences.

12. I would fix a lesser term for the 2008 offending than did the judge to demonstrate to the appellant that the imputed error has been addressed.  In relation to the time in custody, I think it preferable to divide it between the two groups of offences, so that the actual head sentence for each group will be plain.

13. On the three 2008 offences I would take a single starting point of 20 months imprisonment and reduce it to fifteen months on account of the early pleas of guilty.  From that I would deduct seven months to reflect the time in custody, giving a head sentence of eight months.

14. For the 2009 offences I would start at two and a half years imprisonment and allow five months for the pleas of guilty.  I would then deduct eight months for time in custody, giving a head sentence of seventeen months.  The two head sentences, totalling two years and one month, would be served consecutively.  In relation to the non-parole period I would use a similar proportion as did the judge, being about 63 per cent, and apply it to the total head sentence before time in custody is deducted.  That gives a provisional figure of twenty-five months.  From that is to be deducted the fifteen months for time in custody, which leaves a non-parole period of ten months.

    Conclusion

15. I propose that the following orders be made:

    1.     the appeal is allowed;

    2.     the sentences imposed in the District Court are set aside;

    3.in their place, sentences of imprisonment for eight months on the 2008 offences and seventeen months on the 2009 offences, to be served consecutively are imposed;  a non-parole period of ten months imprisonment is fixed;

    4.the first head sentence and the non-parole period are to date (as before) from 4 March 2011.

16. KOURAKIS J:     I agree with the orders proposed by Vanstone J and with her reasons.

1. PEEK J:   I agree with the orders proposed by Vanstone J and with her reasons.