(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Kourakis)
3 June 2009
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
Wife of appellant died days after suffering head injuries – appellant charged with manslaughter and pleaded not guilty – convicted in District Court after trial by jury – verdict implied that jury rejected exculpatory version of events appellant gave to police and in evidence at trial – manslaughter a ‘serious offence against the person’ for the purposes of s 32(5)(ba) Criminal Law (Sentencing) Act 1988 (SA) (‘the Act’) – appellant fell to be sentenced under the mandatory minimum non-parole period regime created by s 32A of the Act – sentencing Judge proceeded on the basis that no ‘special reasons’ existed to enliven power under s 32A(2)(b) of the Act to fix non-parole period shorter than the minimum proportion of head sentence specified by the Act – whether cooperation of appellant with police gave rise to ‘special reasons’.
Held: proportion of head sentence fixed by the Act as minimum non-parole period applicable to a person convicted of a ‘serious offence against the person’ to be treated as a benchmark representing the non-parole period appropriate for a person convicted of an offence at the lower end of the range of objective seriousness for offences of that type – in order to determine whether a non-parole period equal to, longer or shorter than that prescribed is warranted, sentencing Judge must compare the non-parole period appropriate in the particular case, arrived at having regard to the factors set out in s 32A(2), with the benchmark – cooperation of appellant not such as to give rise to ‘special reasons’ – appeal dismissed.
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
HIGH COURT AND FEDERAL COURT - THE FEDERAL JUDICATURE - NATURE AND EXTENT OF JUDICIAL POWER - CONFERRAL ON STATE COURTS
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION - RIGHTS AND FREEDOMS IMPLIED IN COMMONWEALTH CONSTITUTION - OTHER RIGHTS AND FREEDOMS
Power of a court to fix a non-parole period shorter than the mandatory minimum arises only when ‘special reasons’ exist – in determining whether ‘special reasons’ exist, the court can have regard only to the matters set out in s 32A(3) of the Act – one of the matters specified in s 32A(3) of the Act is the fact of a plea of guilty and the circumstances surrounding the plea – whether s 32A(3) of the Act requires the court to discriminate between offenders in a manner that impairs the court’s institutional integrity such that it is Constitutionally invalid.
Held: process to be undertaken by a court in fixing non-parole period in accordance with the process specified by the Act not foreign…
Grounds of appeal
[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 Ironside [2009] SASC 151
Case
[2009] SASC 151
Decision Date
CaseChat Overview and Summary
The appellant, Ronald Robert Ironside, was convicted of manslaughter in the District Court of South Australia. He was charged with the unlawful killing of his wife, May Ironside, between 29 September and 5 October 2002. Ironside was sentenced to imprisonment for six years and three months with a non-parole period of five years. Ironside appealed against his sentence on the grounds that the sentence was manifestly excessive, that the sentencing judge erred in determining the non-parole period, and that the judge failed to take into account mitigating factors. The appeal raised questions about the constitutional validity of certain provisions of the Criminal Law (Sentencing) Act 1988 (SA) and the construction of provisions regarding mandatory minimum non-parole periods. The High Court rejected the challenge to the validity of the provisions introduced by the 2007 Act. The Court found that the proportion of the head sentence fixed by the Act as the minimum non-parole period applicable to a person convicted of a serious offence against the person should be treated as a benchmark. The sentencing judge must compare the non-parole period appropriate in the particular case with the benchmark. The cooperation of Ironside with the police did not give rise to 'special reasons'. The appeal was dismissed.
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
For all those reasons, I would reject the challenge to the validity of the provisions introduced by the 2007 Act.Conclusion The appeal against sentence should be dismissed. This is an appeal against sentence. The defendant and appellant, Ronald Robert Ironside was charged with the offence of manslaughter. The particulars were that between 29 September and 5 October 2002 the defendant unlawfully killed May Ironside. The deceased was the spouse of the defendant. On 20 May 2008, following a trial before a Judge and jury in the District Court, the defendant was found guilty of the crime of manslaughter. The verdict was unanimous. The trial Judge sentenced the defendant to imprisonment for six years and three months. He fixed a non‑parole period of five years. It is to be observed that the non‑parole period is four fifths of the head sentence.[1] [1] When sentencing, the Judge said:I impose a head sentence of six years and three months. S.32(ba) of the Criminal Law (Sentencing) Act requires that I impose a non-parole period which is four-fifths of that head sentence. None of the mitigating factors set out in s.32A of the Act applies to you so as to permit me to depart from that requirement. I therefore impose a non-parole period of five years imprisonment. The defendant appeals with permission on three grounds; that the sentence is manifestly excessive in respect of the head sentence and the non-parole period;[2] that the sentencing Judge erred in determining that the defendant was required to serve four fifths of the head sentence pursuant to section 32(5)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) and erred in determining that none of the mitigating factors set out in section 32A of Sentencing Act applied to the defendant.[2] In granting permission on this ground the Court observed:Leave for permission to appeal is granted in relation to that portion of ground 1, which relates to the complaint that the non-parole period is manifestly excessive, and that is granted only insofar as it is relevant to grounds 4 and 5 which complain that the learned sentencing judge did not take into account a matter which he could have and should have in relation to that section. This appeal raises for consideration recent amendments to the Sentencing Act and in particular the construction of provisions with respect to mandatory minimum non-parole periods. Before coming to discuss the constitutional implications of the defendant’s submissions and the construction questions that arise, I propose to set out the circumstances of the defendant’s offending and to summarise the approach and reasons of the Judge for the sentence imposed. The defendant and his wife, the deceased and victim of the offence, had been married for almost 40 years. The deceased was of a slight build and only weighed 39 kilograms. The deceased died as a result of a subdural haemorrhage caused by injuries to her head. Although the cause of the fatal injuries was not entirely clear, they resulted either from the defendant pushing the deceased so that she fell and suffered the injuries, or alternatively as a result of the defendant striking the deceased about the head. The defence case that the deceased had fallen accidentally was rejected by the jury. A neuropathologist expressed the opinion that if the head injuries had been caused by a blow or blows to the head, those blows need not have been severe. A mild or moderate blow or blows could have caused the injury. As the sentencing Judge observed, whatever the cause, the jury’s verdict could only mean that the actions which caused the injuries were the defendant’s actions and that they were deliberate.
Ratio Decidendi
Legal Principle Established
In my view the legislation may be so construed and should be so construed. In these circumstances, there is no constitutional invalidity in the State statutory provisions.Co-operation It was submitted that in the circumstances of the present proceeding, the defendant had co‑operated in the investigation and in the prosecution in such a way as to require the Judge to consider whether special reasons existed. It was said that, in the particular circumstances, the co‑operation of the defendant was such that the conclusion should be reached that special reason did exist and that the circumstances were sufficient to allow the Judge to fix a non‑parole period shorter than the prescribed minimum The defendant identified a number of matters said to establish co‑operation both in the investigation and in the prosecution of his offence. These included participating in police interrogations, co-operating with the police attendance in the search of his home, providing a forensic sample for the purposes of DNA analysis, consenting to the Director of Public Prosecutions’ vulnerable witness application, agreeing facts, giving evidence at trial including on the voir dire, co-operating with the prosecution by attending various court dates and applying for legal aid to secure legal representation and enable a certificate to be provided pursuant to section 8 of the Criminal Law (Legal Representation Act) 2001 (SA).[70][70] (1) At the first directions hearing to be held after the defendant's arraignment, the court—(a) must consider the question whether a direction is required under this section; and(b) must determine the question at that hearing or as soon as practicable afterwards.(2) If the defendant is represented by a lawyer, the lawyer must, at least 7 days before the day fixed for the first directions hearing, file in the court a certificate certifying that—(a) the defendant is an assisted person; or(b) the lawyer undertakes that the defendant will be provided with legal representation for the duration of the trial; or(c) the defendant is not an assisted person and the lawyer is not prepared to give an undertaking under paragraph (b).(3)The court must direct the defendant to make an application to the Commission for legal assistance unless—(a) the defendant is an assisted person; or(b) the defendant's lawyer has given an undertaking to the court that the defendant will be provided with legal representation for the duration of the trial; or(c) the court is satisfied, on the basis of a written assurance given by the defendant, that the defendant does not want legal representation at the trial.(4)A direction under this section must fix a reasonable time within which the direction is to be complied with. The Solicitor‑General accepted these factual assertions but argued that many could not be classified as co-operation, and those that could be said to amount to co-operation, were not sufficient to establish co‑operation of such a nature so as to cause a Judge to consider whether special reason existed. It was said that the only matters of substance were the defendant’s agreement to participate in police interviews, his facilitation of an inspection of his home and the agreement of a number of factual matters at his trial. It was then submitted that close analysis of the defendant’s asserted co‑operation with the police demonstrated that it was illusory. It was said that the defendant was manipulating the relevant occasions to facilitate the “spinning of a false story” to the police. It was said that the provision of the DNA sample was with respect to establishing the defendant’s involvement in the death of the deceased, and this fact was not and could not be an issue. It was contended that the so-called co‑operation with the prosecution could not relevantly include his answering his bail or his applying for legal aid. The other matters which suggested co‑operation were so minor as not to be of substance.