R v Hopper (No 2)

[2018] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HOPPER (No 2)

[2018] SASCFC 79

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)

15 August 2018

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE - PRE-SENTENCE REPORTS

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - SENTENCE

On 13 June 2018, this Court allowed the appellant's appeal against sentence and set aside various District Court sentences.  The appellant was remanded in custody pending the preparation of a pre-sentence report to assist with resentencing.  Following receipt of the pre-sentence report, the parties provided further written and oral submissions.

Held per Nicholson J (Kelly and Blue JJ agreeing):

1.  The appellant is resentenced to a single term of imprisonment for all offences of five years, six months and two weeks.

2.  A non-parole period of two years and 10 months is fixed.

3.  Both the head sentence and non-parole period are backdated to commence on 29 January 2017.

R v HOPPER (No 2)
[2018] SASCFC 79

Court of Criminal Appeal:   Kelly, Blue and Nicholson JJ

KELLY J.

1. I agree with Nicholson J.

   BLUE J.

2. I agree with Nicholson J.

   NICHOLSON J.

3. On 13 June 2018, the Court delivered its principal reasons allowing Ms Hopper’s appeal against sentence.[1]  These further reasons should be read in conjunction with those principal reasons.

   [1]    R v Hopper [2018] SASCFC 53.

4. In order to assist with resentencing, the Court ordered a pre-sentence report.  Following receipt of the pre-sentence report, the parties provided supplementary written and oral submissions.

   The pre-sentence report

5. Many of the matters addressed in the pre-sentence report with respect to the appellant’s difficult personal circumstances, in particular in the period preceding the offending, were the subject of submissions before this Court on the hearing of the appeal.

6. Some crimogenic factors relevant to the appellant, in particular substance abuse, poor mental and physical health, lack of positive community supports and lack of stable accommodation, have been moderated as a consequence of her time in custody. The report writer opined that these factors will likely further reduce in significance with continued time in custody.

7. However, the appellant’s behaviour whilst in custody has been of some concern. The appellant has been involved in fights and intimidation of other inmates and has received warnings for her behaviour towards prison staff. The appellant has also returned three positive drug tests for the prescription drugs methadone and clonazepam while in custody but not for her drug of addiction, methylamphetamine.

8. The appellant was subject to a period of supervision pursuant to a suspended sentence bond between 2010 and 2012. The report writer indicates that, during that period, the appellant engaged well with community based supervision and followed directions and willingly engaged with targeted referrals.

9. It is recommended that, in preparation for her eventual discharge from custody, the appellant be referred to medical services to address her substance abuse and mental and physical health issues, and that consideration be given to a long term stable accommodation strategy.

   The appellant’s contentions on resentencing

10. In addition to supplementary written submissions, the appellant provided to the Court medical records which were relied upon for the preparation of the pre-sentence report and in support of the appellant’s submissions concerning domestic violence, mental health and drug use issues during the period preceding the subject offending in 2016.

11. As was submitted on appeal, this latest period in custody has been significantly longer than any previous custodial term served by the appellant. The appellant submits that the reports of behavioural issues in custody should be considered in this context. Further, the last reported altercation occurred in March 2018 and the appellant has not been involved in any behavioural incidents since her move into a lower security accommodation unit.

12. With respect to the positive drug tests, the appellant submits that the three positive test results were recorded during a period of 15 months which coincided with her sentencing in the District Court and hospitalisation following a self-harm attempt. The appellant contends that her abstinence from methylamphetamine for a period of almost two years is indicative of her ability and motivation to abstain from use of the drug to which she was addicted at the time of the offending.

13. The appellant is presently participating in and has completed a number of voluntary programs in support of her rehabilitation. It is contended that the appellant’s demonstrated willingness to accept the support offered while in custody, in combination with her active steps to address her personal circumstances relevant to the offending, support the submissions made on appeal as to her good prospects for rehabilitation. 

14. The appellant contends that, with a supervised period of parole allowing a gradual reintegration into the community and the maintenance of the supports presently available to the appellant, her likelihood of reoffending would be reduced and community safety enhanced.

    The respondent’s contentions on resentencing

15. The respondent primarily relies on his written submissions filed for the hearing of the appeal, in particular with respect to the appropriate head sentence and non-parole period for this offending.  The respondent’s supplementary written submissions address matters raised by the pre-sentence report.

16. The respondent submits that the appellant’s ongoing mental health issues, in combination with her long standing reliance on illicit drugs, are such that the appellant’s prospects of avoiding reoffending must be assessed as guarded.

17. The respondent contends that the concerns identified in the pre-sentence report relating to the appellant’s behaviour in custody indicate that the appellant has a willingness to resort to violence or aggression that is not solely referable to her use of illicit drugs and may instead be symptomatic of a long standing issue. It is submitted that personal deterrence and the protection of the community remain significant considerations.

18. Ultimately the respondent submits that, although aspects of the report are positive, the report confirms that the appellant’s prospects of rehabilitation are difficult to assess and remain guarded and are likely to be highly dependent on a number of variables. The respondent identifies these variables as the appellant’s ability to abstain from drug use, the nature of further treatment she receives and her willingness to comply with it, the nature of the supports that she has in place and the people with whom she chooses to associate.

    Consideration and resentence

19. There is no doubt that the appellant continues to confront a number of serious criminogenic factors although attempts are being made by her to address these.  Nevertheless, she will require substantial assistance with respect to these matters whilst she remains in custody and when on parole if her prospects of reoffending are to be substantially reduced.  She will need a lengthy period of parole under strict supervision and with the assistance of positive interventions.  I bear in mind that, as of now, the appellant already has spent approximately two years in custody (see footnote 3 and the accompanying text).

20. Having reviewed the additional material, together with the circumstances of the offending and the appellant’s personal circumstances, as summarised in the principal reasons, I would proceed to resentence as follows.

21. I would exercise the statutory discretion available[2] to impose the one penalty for all offences being a sentence of imprisonment for five years, six months and two weeks.  I have arrived at that head sentence in the following manner.

    [2] The discretion to sentence in this manner arose pursuant to section 18A of the Criminal Law (Sentencing) Act 1988.  That Act was recently repealed and replaced by the Sentencing Act 2017 which came into effect on 30 April 2018. A discretion in materially the same terms as section 18A is provided for in section 26 of the new Act. It is unnecessary to consider the transitional provision in the new Act so as to decide whether section 18A or section 26 applies to the present resentencing exercise.

22. For the 9 May 2016 and 18 May 2016 offences, and using the statutory discretion, I notionally fix a term of eight months and two weeks reduced from 12 months (approximately 29 per cent) on account of the pleas.  For the offences on 18 August 2016, and again using the statutory discretion, I notionally fix a term of four years and 10 months reduced from six years (a shade under 20 per cent) on account of the pleas.  It is to be noted that my combined starting points amount to seven years.

23. I see no reason to depart from the Judge’s conclusion that a non-parole period representing a relatively low proportion of the head sentence is warranted.  I would fix a non-parole period of two years and 10 months.  Given the appellant’s personal circumstances, this pays sufficient regard to the sentencing purposes of punishment, denunciation and deterrence but also allows for a substantial period (up to a further two years eight months and two weeks) under strict supervision on parole.  The latter will be critically important to the appellant’s continuing rehabilitation.

24. Both the head sentence of five years, six months and two weeks and the non-parole period of two years and 10 months should be backdated to commence on 29 January 2017 for the reason given by the Judge.[3]  The Judge also disqualified the appellant from holding or obtaining a driver’s licence for 12 months to commence to run from the date the appellant is released from prison.  That order has not been challenged and is to remain undisturbed.

    [3]    The appellant was arrested on 30 August 2016 and has remained in custody since then.  However, she was sentenced in the Magistrates Court on 12 October 2016 with respect to unrelated offending.  That sentence was backdated to 30 August 2016 and expired on 29 January 2017.