SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HONEYMAN
[2019] SASCFC 24
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)
21 March 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence.
On 27 August 2018 the appellant was sentenced to imprisonment for 19 months, two weeks and one day for offences he committed on 21 April 2017, 5 May 2017 and 16 November 2017. All the offences were committed in breach of a suspended sentence bond that the appellant had entered into on 22 July 2016. The sentencing Judge revoked the suspension with the consequence that the appellant was required to serve the related sentence of imprisonment of one year and four months. The result was an overall period of imprisonment of two years, 11 months, two weeks and one day.
The appellant appealed on the ground that the sentence imposed for the offences committed on 16 November 2017, being the illegal use of a motor vehicle, drive unlicensed, unlawful possession and hinder police, was manifestly excessive. The appellant submitted that, as a consequence, this rendered the overall sentence imposed for the 21 April 2017, 5 May 2017 and 16 November 2017 offending manifestly excessive.
Held, allowing the appeal per the Court, the sentence imposed by the sentencing Judge for the 16 November 2017 offending was manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 86A; Motor Vehicles Act 1959 (SA) s 74(1); Road Traffic Act 1961 (SA) s 44; Sentencing Act 2017 (SA) s 26; Statutes Amendment (Illegal Use of Motor Vehicles) Act 1992 (SA); Summary Offences Act 1953 (SA) ss 6(1), 6(2), 17(1), 21C(1), 41(1), referred to.
Greco v Police [2015] SASC 145; Myers v Police [2002] SASC 26; Hili v The Queen (2010) 242 CLR 520; Hole v Police [1999] SASC 153; Hubbard v Police [2004] SASC 377; Martin v Police [1999] SASC 202; Newband v Police (1999) 75 SASR 226; Pearce v Police (1998) 199 LSJS 443; R v Basso (1999) 108 A Crim R 392; R v Hronopoulos [2017] SASCFC 143; R v Hunter [2000] SASC 137; R v Morse (1979) 23 SASR 98; R v Nemer (2003) 87 SASR 168; R v Perre (1986) 41 SASR 105, considered.
R v HONEYMAN
[2019] SASCFC 24Court of Criminal Appeal: Kourakis CJ, Kelly and Hinton JJ
THE COURT:
This is an appeal against sentence. The table below lists the offences for which the appellant, Lloyd Honeyman, was sentenced on 27 August 2018 in addition to identifying the date upon which those offences were committed, the applicable maximum penalties, the applicable maximum discount that could be afforded to the appellant on account of his having pleaded guilty and the sentence imposed.
Date of offending Offences Maximum penalty Applicable discount Sentence 21 April 2017
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CaseChat Overview and Summary
The central legal issue before the court was whether the sentence imposed was manifestly excessive. In determining this, the court was required to consider the appellant's criminal history, including prior convictions for illegal use of a motor vehicle and dishonesty offences, as well as the fact that the current offences were committed while the appellant was on bail and subject to a suspended sentence. The court also had to assess whether the sentencing judge had given appropriate weight to the appellant's personal circumstances, such as his mental health deterioration and drug misuse, and whether these factors provided an excuse or merely an explanation for his offending.
The court applied established principles for assessing manifest excess in sentencing, referencing the approach outlined in *R v Morse* and *Hili v The Queen*. These principles require a sentence to be viewed in light of the maximum penalty, customary sentencing standards for the crime, the seriousness of the conduct relative to similar offences, and the offender's personal circumstances. The court noted that the sentencing judge had appropriately considered the appellant's mental health as an explanation but not an excuse for his actions. The court also considered the legislative intent behind amendments to penalties for illegal use of a motor vehicle, which aimed to increase their severity to be comparable with larceny.
Ultimately, the court concluded that, in all the circumstances, the sentence imposed was not manifestly excessive. The appellant's criminal history, the commission of offences while on bail and suspended sentence, and his failure to respond to previous leniency, weighed against any further reduction in sentence.
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
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Ratio Decidendi
Legal Principle Established
The respondent submitted that a starting point of 18 months’ imprisonment for the 16 November 2017 offending was appropriate. The appellant’s offending had to be viewed in the light of his criminal history, which included two prior offences of illegally using a motor vehicle and numerous convictions for dishonesty offences. Further, the fact that the offences were committed whilst the appellant was on bail and subject to a suspended sentence bond and that the appellant had failed to respond to leniency when extended to him militated against any further extension of leniency. In this latter regard reference was also made to the fact that the appellant had failed to engage fully with the supervision that had been provided under the terms of his bond and had continued to use drugs. Counsel submitted that the sentencing Judge had appropriate regard to the appellant’s personal circumstances including the deterioration of his mental health and his misuse of prescription medication and illicit drugs. Quite appropriately, the sentencing Judge referred to the appellant’s mental health as providing an explanation for his offending but no excuse. In all the circumstances the sentence was not manifestly excessive.Consideration In R v Morse King CJ, with whom White and Mohr JJ agreed, identified the approach to be undertaken by this Court in determining whether a sentence is manifestly excessive.[14] He said:[15]To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. ...[14] (1979) 23 SASR 98.[15] R v Morse (1979) 23 SASR 98 at 99. The comments of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hili v The Queen are also apposite:[16]… what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.[16] (2010) 242 CLR 520 at [60]. Bearing this in mind, we proceed to consider the sentences that we would have imposed for the offences of illegal use of a motor vehicle, unlawful possession and hinder police. The applicable maximum penalties for the 16 November 2017 offences are set out in the table above. The Statutes Amendment (Illegal Use of Motor Vehicles) Act 1992 (SA) inserted s 86A in the Criminal Law Consolidation Act 1935 (SA) replacing its predecessor, s 44 of the Road Traffic Act 1961 (SA). The maximum penalty for a first offence and for a subsequent offence were doubled “to make the penalties for illegal use of a motor vehicle comparable with those for larceny”[17] and ensure that it be “regarded as a more serious crime”[18] than as had been the case under s 44.[17] Parliament of South Australia, House of Assembly, Hansard, 27 November 1991 at 2419.[18] Parliament of South Australia, House of Assembly, Hansard, 12 February 1992 at 2701.