R v HUGGETT - [2005] SASC 236

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUGGETT
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Sulan)
1 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO-OFFENDERS
Appeal against sentence - appellant pleaded guilty to one charge of assault occasioning actual bodily harm - appellant jointly charged with two co-offenders - the appellant's conviction for this offence constituted a breach of parole for a previous offence - appellant sentenced to three years, one month and seven days imprisonment with a non-parole period of two years and twenty four days after taking into account the unexpired period of parole, a reduction for the plea of guilty and a reduction for time already spent in custody - whether the sentence was manifestly excessive having regard to the part played by the appellant in the offending - whether the appellant participated in the conduct of the co-offenders - whether there was disparty between the sentences of the appellant and the co-offenders - whether the sentencing judge had insufficient regard to the fact that the co-offenders received suspended sentences - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 10(1), referred to.
Kowald v Hoile (No. 2) (1976) 14 SASR 314; Lowe v R (1984) 154 CLR 606; R v Christianos (1983) 34 SASR 316; R v MacGowan (1986) 42 SASR 580; R v Mackinder (2004) 148 A Crim R 421; Wakely v Police (2003) 229 LSJS 327, considered.

R v HUGGETT
[2005] SASC 236
Court of Criminal Appeal: Doyle CJ, Perry and Sulan JJ

DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons given by Sulan J for so deciding.
PERRY J: I would dismiss the appeal. I agree with the reasons of Sulan J.
SULAN J: This is an appeal against sentence.
The appellant pleaded guilty to assault occasioning actual bodily harm. The offence occurred on 16 April 2004 at Whyalla. The appellant, together with Marc Claude Drion and Richard Paul Hayward, assaulted Carl Barry Louwrens, thereby occasioning him actual bodily harm. The maximum penalty for the offence is five years imprisonment. At the time of the offence, the appellant was on parole and the unexpired balance of the sentence of imprisonment in respect of which the appellant was on parole was one year, five months and nineteen days.
The sentence imposed by the District Court judge was three years, one month and seven days imprisonment. The non-parole period imposed was two years and twenty four days.
The appellant complains that the sentence was manifestly excessive having regard to the role the appellant played in the commission of the offence, and to the sentences imposed upon the co-offenders.
Background
The appellant and the victim became acquainted when the victim, who resided in Queensland, moved to Whyalla to work. At the time, there were a number of contracts which had been let to interstate firms for the maintenance and repair of equipment used in steel manufacturing. Work was therefore available in Whyalla. The victim was a user of amphetamines, but because he was a relatively new arrival in Whyalla, he did not know how to obtain the drug. The appellant was also a user of amphetamines. The appellant knew where and from whom to obtain the drug. The arrangement was that the appellant would obtain the drug from the dealer and supply it to the victim. The victim would in turn pay the appellant, who would then pay the dealer. From time to time, the drugs were obtained on credit from the dealer. The victim would later pay the appellant, who would then pay the dealer.
The victim’s employment arrangements were that he would work for three weeks, and was then able to take ten days leave. During the leave periods he would often return to Queensland. From time to time, he owed the appellant money when he left Whyalla, but he always returned and paid any outstanding amounts.
In about April 2004, contractors who had been working in Whyalla were leaving because the contracts, some of which the victim’s employer had obtained, were reaching completion. The supplier of the amphetamines was therefore placing pressure on the appellant to collect any outstanding debts, as the supplier perceived that the victim may leave Whyalla and not return.
The appellant telephoned the victim and put pressure on him to pay the money. Eventually, on 16 April 2004 the appellant decided to go to the victim’s home to confront him. The appellant approached two friends, Marc Claude Drion and Richard Paul Hayward, to go with him to the victim’s home. Both Drion and Hayward were aware that the purpose of going to the victim’s home was to put pressure on him to pay money. The appellant wanted to be able to tell the supplier that he had placed the victim under pressure.
When they arrived at the victim’s home, the appellant demanded that the victim pay the outstanding debt. The victim explained that he did not have the money at that time. The victim was due to receive monies, but the funds were not yet available.
During the course of their discussions, the victim became agitated. The verbal discussions became quite heated. The victim pushed the appellant, who reacted by punching the victim in the face. At that stage, Hayward attacked the victim and punched him a number of times in the head and upper body. The victim fell to the ground and was kicked in the head by Hayward. Drion kicked the victim once. The victim was told to empty his pockets. Hayward then held a knife to the victim’s throat, and demanded to know his PIN number. The victim gave over his PIN number. The three men left.
The victim suffered a graze to his forehead, a graze to his left cheek, a cut to the nose, swelling to his temple and right side of his face, a cut to the front of his neck, bruising to both eyes and a fractured nose.
Submissions to the sentencing judge
Counsel for the appellant submitted to the sentencing judge that there had been no pre-determined plan to assault the victim, and that the appellant struck him after the victim had verbally abused and pushed the appellant. He submitted that the appellant was not involved in the events that transpired after the initial punch. The appellant was unaware that Hayward had a knife. It was accepted that Drion played a lesser direct role, in that he kicked the victim once only when he was on the ground.
Counsel for the Crown submitted that the offending was a serious assault, aggravated in the case of Hayward by the production of a knife. Counsel conceded that Hayward’s conduct was more serious than that of the appellant or Drion, but submitted that although there was no evidence of a plan to assault the victim, the appellant’s conduct in taking his friends with him suggested that the appellant contemplated that they would support him in his demand that the victim pay the outstanding debt. She submitted that the appellant’s criminal record was such that an immediate custodial sentence should be imposed.
The appellant’s antecedents
The appellant was thirty eight years of age at the time of the offence. He has a lengthy record of convictions. He first appeared in the Whyalla Children’s Court at the age of sixteen, charged with offences of dishonesty. He was convicted of common assault in December 1984 and since that date has numerous convictions, including convictions for assault occasioning actual bodily harm. In 1997 he was sentenced to two years imprisonment for assault occasioning actual bodily harm. He breached a suspended sentence bond which had been imposed in October 1999. He was convicted of rape in January 2001, for which he received a sentence of four years and six months imprisonment.
The sentence imposed
The sentencing judge was of the view that the offence was a serious example of the offence of assault occasioning actual bodily harm and that in respect of each of the offenders, the appropriate sentence was one of imprisonment. He accepted that there was no pre-conceived plan. He concluded that the appellant’s direct involvement in the offence was that he responded to the victim pushing him by punching the victim in the face. However, that was not the end of the matter as far as the appellant was concerned, because the appellant remained in the vicinity whilst Hayward violently assaulted the victim and Drion kicked him whilst he was on the ground. The appellant did nothing to stop the attack upon the victim, and when the three men departed the appellant drove Hayward and Drion away from the scene. The sentencing judge acknowledged that it was Hayward’s conduct which directly caused the injuries. Nevertheless, it is implicit from the appellant’s plea of guilty that he is to be regarded as having participated in the conduct of both Hayward and Drion. The sentencing judge must have concluded that this was a joint assault which occurred in the course of the appellant confronting the victim at the victim’s home. The appellant’s plea of guilty must have been on the basis that the appellant accepted that he was a party to Hayward’s attack on the victim, albeit not directly involved in it. That assault resulted in severe injuries to the victim.
The sentencing judge accepted that the appellant’s direct involvement was less than that of Hayward, but he concluded that the offending was serious and warranted a sentence of imprisonment. He had regard to the fact that the appellant’s criminal antecedents were significantly more serious than that of the other two offenders.
In determining the head sentence, the judge was required to have regard to the appellant’s prior record, in particular his prior convictions for offences involving violence.[1] The judge arrived at the sentence by the following method. He said that but for the appellant’s plea of guilty, he would have imposed a sentence of three years imprisonment. He applied a reduction of twenty five per cent for the appellant’s plea. The period of two years and three months was increased because the appellant was liable to serve the unexpired period of parole, resulting in a total head sentence of three years, eight months and fifteen days. The judge set a notional non-parole period of two years and nine months. He then took into account a period of seven months and eight days which the appellant had been in custody at the date of the sentence, with the result that the sentence was adjusted to three years, one month and seven days, with a non-parole period of two years and twenty four days. It seems that the judge made an error in calculating the non‑parole period, as he appears to have reduced it by eight months and eight days, rather than seven months and eight days. The conviction for this offence constituted a breach of that parole.
[1] See R v Mackinder (2004) 148 A Crim R 421
As to Hayward, the sentencing judge concluded that his involvement was much greater than that of the appellant or Drion. He imposed a sentence of two years and three months, having regard to the plea of guilty. The judge imposed a non-parole period of one year and two months. It was the sentencing judge’s conclusion that Hayward’s greater direct involvement in the assault should result in a lengthier sentence than that of the other two offenders. However, the sentencing judge concluded that, having agreed to the appellant’s lengthy criminal history, the head sentence should be the same in respect of both the appellant and Hayward. The sentencing judge suspended Hayward’s sentence, having regard to his personal circumstances.
Drion was sentenced to fifteen months imprisonment, with a non‑parole period of eight months. The sentencing judge considered that because of his personal circumstances, good reason existed to suspend his sentence.
The appeal
The appellant complains that the sentence imposed, having regard to the part the appellant played in the offending, was manifestly excessive. He further complains that there was a disparity between the sentences imposed upon the appellant and the other defendants.
The appellant’s counsel submits that there was no pre-planning, and that the appellant’s participation in punching the victim only once was simply an over‑reaction to the victim pushing him during a verbal altercation. He submits that, having regard to the significantly lesser role played by the appellant, the sentence was out of proportion when compared with the sentence imposed upon Hayward, who gratuitously attacked the victim and threatened him with a knife.
Counsel’s submission overlooks the fact that it was the appellant who instigated the series of events which occurred. The appellant attended at the victim’s house with the intention of confronting him and demanding payment of a drug debt. The appellant invited Hayward and Drion to accompany him to provide support. It was the appellant who punched the victim. What followed was partly due to the circumstances which had been created by the appellant’s conduct. The appellant was party to what followed, albeit that he did not participate directly in the physical assault. By his presence, in assisting Hayward and Drion to depart, and in leaving the victim injured in his own home, the appellant’s conduct was serious. The appellant’s counsel contended that the sentencing judge should have only had regard to the conduct of the appellant to the extent of one punch, and that the appellant did not participate in the conduct of Hayward and Drion. I do not agree. The appellant, by his plea of guilty, acknowledged his participation together with Hayward and Drion in the assault which caused the bodily harm alleged. The judge was correct in regarding all three offenders as responsible, and then considering the individual role each played in the offence.
The appellant had a poor record, which included previous convictions for serious assaults. The appellant, at the time of the offence, was on parole for rape. The sentencing judge had regard to all relevant factors.
The sentence of two years and three months imprisonment is not manifestly excessive.
Disparity
It is the accepted principle that where two or more persons are sentenced for the same crime, the sentences imposed should be proportionate to their respective degrees of culpability, and to their various personal factors.[2]
[2] See R v MacGowan (1986) 42 SASR 580
In this case, the personal circumstances of each defendant varied significantly. The decision to suspend Hayward’s sentence, given his direct involvement and his use of a knife, was merciful. However, it was within the judge’s discretion to do so.
The judge considered the involvement of each defendant in the offence. He distinguished the appellant from the others because of his prior convictions. He was entitled to do so.[3] The judge took into account the lesser role of the appellant and Drion in the offending, when compared to Hayward’s role.
[3] See R v Mackinder (2004) 148 A Crim R 421 at 424
Counsel for the appellant submitted that the sentencing judge had insufficient regard to the fact that Hayward and Drion received suspended sentences. It was accepted by counsel that, in the case of the appellant, it would have been inappropriate to suspend the sentence. The appellant had been released on parole approximately three months before he committed this offence. In determining the sentences for each offender, the sentencing judge was required to have regard to the matters referred to in s 10(1) of the Criminal Law (Sentencing) Act 1988.[4] Having determined that each offender should be sentenced to imprisonment, and the length of such sentence, the judge was required to consider whether good reason existed to suspend the sentence. In so doing, he must consider all factors relevant to sentence, but primarily the judge is required to consider factors personal to the defendant. In so doing, the judge must not ignore the seriousness of the offence, the role played by the defendant in the offence, and whether the community interest in imposing an immediate custodial sentence on a defendant outweighs the requirement that the judge is to be as compassionate as the circumstances allow.[5]
[4] 10. (1) A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
(a)the circumstances of the offence;
(b)other offences (if any) that are to be taken into account:
(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character – that course of conduct;
(d)the personal circumstances of any victim of the offence;
(e)any injury, loss or damage resulting from the offence;
(ea)in the case of an offence committed by an intruder in the home of another – the need to give proper effect to the policy stated in subsection (2);
(eb)in the case of arson or causing a bushfire – the need to give proper effect to the policy stated in subsection (3);
(f)the degree to which the defendant has shown contrition for the offence –
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(g)if the defendant has pleaded guilty to the charge of the offence – that fact;
(h)the degree to which the defendant has co-operated in the investigation of the offence;
(i)the need to protect the community from the defendant’s criminal acts;
(j)the deterrent effect any sentence under consideration may have on the defendant or other persons;
(k)the need to ensure that the defendant is adequately punished for the offence;
(ka)if a forfeiture of property (other than a forfeiture that merely neutralises a benefit that has been obtained through the commission of the offence) is, or is to be imposed, as a result of the commission of the offence – the nature and extent of the forfeiture;
(l)the character, antecedents, age, means and physical or mental condition of the defendant;
(m)the rehabilitation of the defendant;
(n)the probable effect any sentence under consideration would have on dependants of the defendant;
(o)any other relevant matter.
[5] See Kowald v Hoile (No. 2) (1976) 14 SASR 314 at 319-320
The decision whether to suspend a sentence in respect of one offender should not influence the decision in respect of a co-offender, once the judge has determined that the seriousness of the offending is not so great as to make suspension of a sentence inappropriate.[6]
[6] See R v Christianos (1983) 34 SASR 316
It would be an incorrect approach if a sentencing judge were to reduce the length of an immediate custodial sentence imposed upon one offender because a co-offender was to receive a suspended sentence. When considering whether there has been unjustified disparity between sentences, the fact that one offender has received a suspended sentence can, in the usual case, have little or no relevance to the issue. There may be the exceptional case where there is such a minor difference in two offenders’ personal circumstances and their relative participation in the offence that it can be said that the offender who received an immediate custodial sentence would have a justifiable sense of grievance if his sentence were not also suspended.[7] Such a situation would, in my opinion, be rare. This was not such a case.
[7] See Wakely v Police (2003) 229 LSJS 327 at 331; Lowe v R (1984) 154 CLR 606

I do not agree that there was a disparity in the sentences which would justify this Court in reducing the sentence.
I would dismiss the appeal