SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JONES
[2010] SASCFC 58
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice David and The Honourable Justice Peek)
23 November 2010
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA
DPP seeks permission to appeal against non-parole period imposed by sentencing judge - principles in relation to prosecution appeals - respondent and co-accused attended New Year's Eve party - altercation occurred after which respondent shot victim - victim died - respondent and co-accused charged with murder - respondent offered to plead guilty to manslaughter prior to committal - plea not accepted by DPP - convicted of manslaughter in Supreme Court after trial by jury - manslaughter a "serious offence against the person" for the purposes of s 32(5)(ba) Criminal Law (Sentencing) Act 1988 - respondent 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 "special reasons" existed to entitle him to fix non-parole period shorter than the minimum propportion of head sentence specified by the Act - sentencing judge did not make finding as to where the offence lay on the scale of objective seriousness.
Whether this offence was at the lower end of the scale of objective seriousness - whether co-operation of respondent with police gave rise to "special reason" - whether offer to plead guilty could be included under s 32A(3)(b) or (c) - whether "special reasons" sufficient to warrant a shorter non-parole period than the minimum proportion of the head sentence specified by the Act - whether required to bear four-fifths minimum proportion of the head sentence in mind when fixing a lower-non-parole period.
Held (David and Peek JJ, Anderson J dissenting): permission to appeal is refused.
(the Court): an offence does not need to be at the lower end of the scale to enliven s32A – co-operation of the respondent was correctly considered as a “special reason” under s 32A(3)(c).
(Anderson J): the matters referred to in s 32A(3)(a)-(c) are merely qualifying matters enabling the court to proceed to consider s 32A(2)(b) – the finding of one of the qualifying matters provides the gateway or threshold for consideration of whether under s 32A(2)(b) the “special reason” might amount to such as to justify or warrant a reduction of the statutory minimum non-parole period prescribed – a judge must bear the statutory minimum non-parole period in mind when fixing a lower non-parole period after finding “special reasons” exist – sentencing judge erred in his approach.
(David J): once a finding of “special reasons” is made, there is no need to consider whether offence is at the lower end of the range of objective seriousness – judge can set a shorter non-parole period without further fetter and should sentence in the normal way – sentencing judge was correct in using broad discretion without further fetter.
(Peek J): once a finding of “special reasons” is made, a judge is required to have regard to all factors ordinarily relevant in the fixing of a non-parole period, bearing in mind that one factor is the legislative intention that the non-parole period for an offence at the lower end of the range of objective seriousness should usually be a minimum of eighty per cent of the head sentence – no error in sentencing judge’s approach.
(Anderson and David JJ, Peek J undecided): offer to plead guilty does not satisfy s 32A(3)(b) of the Act.
(David and Peek JJ, Anderson J undecided): offer to plead guilty satisfies s 32A(3)(c) of the Act.
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Criminal Law (Sentencing) Act 1988 s 32A, s 32A(2)(b), s 32A(3)(a), s 32A(3)(b), s 32A(3)(c), s 32(5)(ba) and s 32(10), referred to.
R v Withers (1925) 25 SR (NSW) 382; R v Newton [2002] SASC 36, applied.
R v Angus [2004] SASC 317; R v Lavender (2005) 222 CLR 67; R v Tracey [2006] SASC 66; R v Pompey Supreme Court of South Australia, Layton J, sentencing remarks of 22 April 2009; R v Cardoso (2003) 137 A Crim R 535; R v Marshall [1995] 1 Qd R 673; Malvaso v The Queen (1989) 168 CLR 227; Police v Cadd (1997) 69 SASR 150; Everett v The Queen (1994) 181 CLR 295; R v Ironside [2009] SASC 151; R v Barnett [2009] SASC 332; R v Harkin [2010] SASCFC 39; R v Sioziz (2004) 236 LSJS 88, discussed.
Dinsdale v The Queen (2000) 202 CLR 321; R v Shepperbottom [2001] SASC 31; Elliott v The Queen (2001) 121 A Crim R 254; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Drewett (1983) 35 SASR 344, considered.
R v JONES
[2010] SASCFC 58Court of Criminal Appeal: Anderson, David and Peek JJ
ANDERSON J.
Introduction
The Director of Public Prosecutions seeks permission to appeal in relation to the sentence imposed on the respondent who was convicted of manslaughter.
The respondent was jointly charged with another person, a Mr Lane, with murder. Mr Lane was acquitted of all counts. The respondent, although acquitted of murder, was found guilty by a jury of manslaughter.
The respondent was sentenced on the basis that he was involved in an unlawful and dangerous act which caused death. The unlawful and dangerous act was his pointing and cocking a loaded firearm at the deceased, a Mr Bamford. The firearm discharged and resulted in the death of the deceased.
Permission to appeal is sought on the basis that the sentencing judge erred generally in his application of s 32A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) and specifically in relation to imposing a non-parole period of less than four-fifths of the head sentence pursuant to s 32A and s 32(5)(ba) of the Act.
The sentencing judge reduced a starting point of 11 years for the head sentence to 9 years because of the respondent’s early offer to plead guilty to manslaughter. He had offered this plea to the Crown at an early stage but the offer was rejected by the Crown. He did not plead guilty to manslaughter when he was arraigned at the commencement of the trial. A question arises as to whether the offer is tantamount to a plea pursuant to s 32A(3)(b).
The sentencing judge found that special reasons existed under s 32A(3) of the Act and imposed a non-parole period shorter than the prescribed period of four-fifths of the head sentence. His Honour determined that a non-parole period of 5 years was appropriate.
The application for permission to appeal also raises the well settled principles applicable in prosecution appeals against sentence which I deal with later in these reasons.
Background
The respondent had an unfortunate background of more than 20 years involvement in crimes which included crimes of violence and which also included offences which were committed whilst he was armed with a gun. This aspect is important in the submissions made to the court by Mr Press for the Director. Likewise of importance is the actual make up of the gun used by the respondent.
The gun which was used on this occasion had been taken earlier by the respondent from the ceiling of his house. In his interview he told the police that he had found parts to the gun in a rubbish tip and that he cleaned them and then assembled the firearm.
The lead-up to the use of the firearm occurred on New Year’s Eve 2008 when the respondent held a party at his home at Davoren Park. There were other parties going on in the area, and in particular one at another residence where a Ms Poskus was residing. Mr Lane, who was an acquaintance of the respondent, attended at her house during the evening and at some stage had an argument with her. This apparently related to the ownership of furniture which she had stored on behalf of a friend of Mr Lane.
Both Mr Lane and Ms Poskus were drunk and Mr Lane was also affected by drugs.
Mr Lane spoke with the respondent at his house and as a result of a discussion with him the respondent went to Ms Poskus’ house. He took the loaded firearm from his house and concealed the firearm in the back of his trousers.
The trial judge sentenced the respondent on the basis that he walked up to the deceased, who was at Ms Poskus’ party, pointed the gun at him and discharged it. This was after an altercation during which everyone moved position. The sentencing judge found that the respondent was attempting to stop a confrontation between Ms Poskus and Mr Lane. The respondent said that his attention was drawn to the deceased because a bottle was thrown at him from the position in which the deceased was standing.
The sentencing judge said:
When you were interviewed by the police you told them that you came out of the house after stopping Mr Lane from punching Ms Poskus, when someone from the side of the car threw a Crown lager bottle at you. You told the police that you just picked the gun up and pointed it towards Mr Bamford and that it discharged and he just fell to the ground, but you did not know that you had actually hit him.
His Honour went on to say:
In sentencing you, I do so on the basis that you pointed the loaded gun at Mr Bamford and you cocked it. The gun discharged. I accept that at the time you did not intend to fire the gun. Mr Bamford died within a short time.
Brevet Sergeant Plummer gave evidence at the trial regarding the condition of the firearm. He identified the parts comprising the firearm as coming from a Lithgow Model 1B single-shot bolt-action rifle, with some modifications. Those were that the barrel had been sawn off and the firearm did not have a sear extractor part. As I understand it, a sear is “a pivoted piece in the firing mechanism of small arms which holds the hammer at full cock or half-cock”: see Macquarie Dictionary 5th edition. Also, the main spring which would normally form part of the trigger mechanism had been replaced with a jigsaw blade.
Brevet Sergeant Plummer said that the absence of the sear extractor meant two things: (1) that the trigger of the firearm was “floppy” whereas it would normally feel firm; and (2) that the firearm could not be fired in the ordinary way.
He explained that to fire a complete Lithgow Model 1B rifle a person would load it, cock the cocking handle – which would make a “click” noise and lock in place – and then pull the trigger. He said that this firearm was unable to be cocked like a normal rifle due to the absence of the sear extractor. The cocking handle would not lock in place at all. Brevet Sergeant Plummer said that this firearm could be fired either by pulling back the cocking handle and releasing it, which would cause it to fly forwards and the firearm would discharge, or by striking the back of the cocking handle to tap the firing pin against the cartridge with sufficient force to set the gun off. The trigger would not need to be used.
In his testing, Brevet Sergeant Plummer put in a sear extractor and inserted a piece of cardboard into the stock. After doing this, the firearm trigger worked like a normal Lithgow Model 1B.
In cross-examination Brevet Sergeant Plummer said that he rated this firearm as being in very poor condition, the lowest possible classification he would give a firearm.
The judge found that the firearm was loaded and in a highly dangerous condition. He found that the respondent did not realise the extent to which the firearm was unsafe. Both the respondent’s history with guns and the dangerous condition of this gun are relevant to the seriousness of this offending.
The respondent and Mr Lane left the scene after the shooting. The sentencing judge accepted that the respondent panicked but did not accept the respondent’s version that he did not realise that Mr Bamford had been shot.
The following day the respondent left on a holiday with his family and later heard on the news that Mr Bamford had died. He then admitted his involvement and told the police that he did not intend to kill Mr Bamford and that his intention was only to menace people with the gun. He took the police to Davoren Park and showed them where he had thrown away parts of the gun which the police were able to recover.
The sentencing judge found that he co-operated with the police. The judge accepted that he assisted the police in their investigations and that his assistance made the task easier. He also found that the respondent continued to co-operate with the police, and at a very early stage in the proceedings offered to plead guilty to manslaughter. The sentencing judge said:
You could have pleaded guilty to manslaughter when you were arraigned but you were aware that the prosecution would not accept that plea in answer to the charge.
Personal history of respondent
I set out the personal history of the respondent from the sentencing remarks of the judge. The appellant did not challenge the accuracy of these findings on appeal.
You are 40 years of age. You were born in Western Australia. After your birth you were adopted out because your mother was only 16 years of age. You can remember little of your childhood other than that it was characterised by frequent violence and sexual assaults upon you by a person who stayed with your adoptive family on weekends.
When you were 8 years of age the welfare department intervened and you were made a ward of the State when you were 10. You were placed in various foster homes. You often ran away from foster parents. As a consequence, you fell well behind in your education and only learned to write at a later stage of your life when you were in gaol.
When you were 19 you had a son who was born as a result of a relationship. Your son is currently in gaol for car theft. You have two grandchildren.
In 1986 you married and there are two children of that marriage aged 16 and 13, who live with your former wife’s mother in Western Australia. Your former wife, from whom you separated in 1995, committed suicide in 2001.
During your time in Western Australia up to 1996 you were constantly in trouble and you have numerous prior convictions for driving offences, dishonesty offences, offences of violence and armed robbery. The armed robbery offences were committed in 1988 and in 1989 and you were sentenced to seven years imprisonment for a number of offences involving violence and armed robbery. In July 1989 you received a further sentence of four years imprisonment for attempted robberies and stealing, all committed in 1988.
You were again convicted of offences in 1996 relating to dishonesty and escaping from legal custody. You received a further sentence of over four years imprisonment. It is clear that by that stage you were well and truly involved in criminal offending on a regular basis and you were mixing with criminals, committing offences and spending long periods of time in custody. Your counsel put to me that you were on a treadmill of criminality, fuelled by drugs and alcohol.
After your release you moved to South Australia in 1999, having decided that you needed to get away from your associates. You decided to try and lead a useful life. Your then wife came with you but she left you shortly after you came to South Australia. You then met your current partner, who continues to support you.
After you came to South Australia you were in regular employment until November 2007, when you suffered a serious industrial accident when the welding gear which you were using malfunctioned. You suffered severe burns. You continue to suffer symptoms of post traumatic stress from the accident.
As can be observed, the respondent was in trouble regularly in Western Australia, with prior convictions for dishonesty, violence, armed robbery and driving offences.
The arguments advanced by the Crown
Mr Press, who appeared for the Director of Public Prosecutions, argued that the sentencing judge failed to have any regard to the fact that the non-parole period for the manslaughter had to reflect a mandatory minimum non-parole period of four-fifths of the head sentence for the offence if it was at the lower end of the range of objective seriousness for serious offences.
Manslaughter is a serious offence against the person pursuant to s 32(10) of the Criminal Law (Sentencing) Act.
Section 32(5)(ba) of that Act states:
32—Duty of court to fix or extend non-parole periods
…
(5)…
(ba) if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four‑fifths the length of the sentence;
It is from that subsection that the four-fifths requirement appears.
The considerations to be taken into account in fixing a non-parole period under s 32 are set out in s 32A.
Section 32A states:
32A—Mandatory minimum non-parole periods and proportionality
(1)If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies.
(2) In fixing a non-parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may—
(a) if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b) if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a) the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b) if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c) the degree to which the offender has co‑operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.
(4)This section applies whether a mandatory minimum non‑parole period is prescribed under this Act or some other Act.
The only reference in the judge’s sentencing remarks to s 32A is as follows:
In setting a non-parole period, the prosecution has urged that I should set a mandatory minimum non-parole period of at least four-fifths of the head sentence. I have considered s 32A(3) of the Criminal Law (Sentencing) Act (1988) which provides that if special reasons exist I am entitled to fix a non-parole period that is shorter than the prescribed period of four-fifths of the head sentence.
In my view, having regard to your cooperation in the investigation and your cooperation in the prosecution of the offence, and to those matters I have referred to in these reasons and, in particular, your frankness with the police when interviewed, your assistance to the police in taking them to recover the weapon, and your earlier offer to plead guilty to manslaughter, I am satisfied that special reasons do exist and that I can apply a non-parole period of less than the prescribed minimum.
If those remarks are read as indicating an understanding that s 32A(3) provides that if special reasons exist the judge is entitled to then fix a shorter non-parole period than the prescribed four-fifths then they are not strictly correct.
Section 32A(3) sets out the matters that the court must have regard to in deciding if special reasons exist. If any of the matters in s 32A(3)(a)-(c) do exist then s 32A(2)(b) is enlivened. In other words the matters referred to in s 32A(3)(a)-(c) are merely qualifying matters enabling the court to proceed to consider s 32A(2)(b). Those qualifying matters provide the gateway or threshold for further consideration. The court may then consider whether it is satisfied that there are special reasons which would warrant fixing a shorter non-parole period than the minimum prescribed.
Clearly, in his comments about co-operation set out above, His Honour was there making a finding that one of the qualifying matters was present, probably within s 32A(3)(c). Such a finding is not challenged if it means that the finding is related to the paragraph in the judge’s remarks set out above relating to co-operation. However, the judge did not indicate if he also used s 32A(3)(b) on the basis that an offer to plead was equivalent to an actual plea. That suggestion was made during sentencing submissions.
There is no finding as to whether the offence was at the lower end of a range of objective seriousness. The prosecutor during sentencing submissions submitted that the offending was in the high range of objective seriousness. Counsel for the respondent in his sentencing submissions made no submissions on that aspect.
Mr Press submitted that, because His Honour did not consider whether the offence was at the lower end of the range of seriousness, he fell into error. If the four-fifths ratio had been used then the non-parole period would have been fixed at 7 years 2 months and 12 days. There was no argument concerning the head sentence. Mr Press emphasised the fact that the starting point for the head sentence was 11 years and that this would indicate on its face that the judge did not consider that the offence was at the lower end of the range of objective seriousness. As I say later, I find it difficult to see how this offending could be at the lower end of the range.
The seriousness of the offending
Mr Press argued that there were many factors which indicated that this offending was not at the lower end of the range of seriousness. He set these out in his written outline. They are as follows:
(a)The respondent was aware of the potential for violence prior to attending at the scene of the crime;
(b)The respondent nonetheless armed himself with a loaded firearm;
(c)The respondent was aware that the firearm was loaded;
(d)The respondent specifically attended at the house with an intention to menace those at the house with the firearm;
(e)The respondent knew about firearms and given his priors, was clearly aware of the potential dangerousness of committing offences with firearms;
(f)There was no element of self-defence in the actions of the respondent and the respondent used the firearm specifically to “menace” the victim;
(g)The respondent intentionally aimed the firearm at the victim;
(h)The respondent intentionally cocked the firearm;
(i)The respondent had found the firearm at the dump and had reconditioned it himself. The respondent’s lack of knowledge of the safety of the firearm made the act of pointing it at the victim and cocking the firing pin all the more dangerous.
Of those matters, Mr Press submitted that the sentencing judge did not deal with the matters set out in (e), (f) and (i) above in his sentencing remarks.
Mr Press submitted that the respondent was involved in a number of significant steps which he took before the deceased was shot. First, he had decided to keep the loaded firearm in his roof; secondly, he had decided on that night to go up into the roof to retrieve the firearm; thirdly, he decided to leave his house when he heard there was trouble at a nearby house and he agreed to give assistance to Mr Lane; fourthly, he decided to take the firearm with him; fifthly, he decided to walk to the house and to carry the loaded firearm concealed in his pants; sixthly, he then intentionally took the firearm out of his pants; seventhly, he decided to point it at Mr Bamford; and finally he decided to cock the firearm and fired it.
Mr Press then reviewed the respondent’s prior offending. He pointed out that on one occasion in Western Australia the respondent had provided firearms to others so that armed robberies could take place. In the course of that armed robbery a firearm was discharged. In another armed robbery he was chased after the course of the robbery and whilst being chased he stopped and fired a weapon towards the person chasing him and actually hit that person. Mr Press referred to another offence where he gave a firearm to another person, all of which offences occurred within a reasonably short period of time in Western Australia.
Mr Press put it this way: in relation to the circumstances of the previous offending that it was “not far away from exactly what happened here, namely that someone needed a firearm, someone needed some muscle and he provided it”.
When interviewed by police, the respondent said:
… I have robbed banks in the past. I do know a little bit about firearms … you supposed to pull the bolt and it supposed to be instantly on lock and then you turn it sideways. But this thing didn’t do it.
Mr Press submitted that nowhere in the sentencing remarks has His Honour indicated that the prior convictions are relevant from the point of view of illustrating the knowledge which Mr Jones had of the danger of firearms in these types of situations. This was relevant to an element of specific deterrence required in the sentence for this man.
Mr Press submitted that the judge was in error if he found that the offending was at the lower end of the range of objective seriousness. To my mind, because of the combination of his background use and knowledge of guns and the obviously dangerous state of this gun, when the respondent pointed the gun at the deceased in the circumstances earlier described it could not be said to be at the lower end of the range of objective seriousness.
Consideration of s 32A
(i) Applicant’s submissions
Mr Press referred to the decisions of this Court in R v Ironside [2009] SASC 151, R v Barnett [2009] SASC 332 and R v Harkin [2010] SASCFC 39. He submitted that the decisions of various members of the court in those matters illustrated that the four-fifths benchmark cannot be ignored at any stage of the sentencing process in fixing the non-parole period. He relied on statements made by Doyle CJ in Ironside, Vanstone J in Barnett, Kourakis J in both Ironside and Barnett and Kelly J and I in Harkin. He submitted that each of those judges had been consistent in stating that the considerations of sentencing pursuant to s 32A should take place around and mindful of the benchmark set by Parliament, namely in this matter, four-fifths of the head sentence for the non-parole period.
He pointed out that Gray J in Ironside was also consistent in relation to the use of the benchmark but that His Honour had different views in relation to the ultimate exercise of the discretion.
Mr Press submitted that the benchmark of four-fifths was relevant to all the questions which had to be asked in fixing a non-parole period. They included whether the non-parole period should be longer than four-fifths, whether the non-parole period should be shorter than four-fifths, whether it should be exactly four-fifths, whether there were special reasons, and finally relevant to a situation of what to do if and when special reasons are found.
Mr Press submitted that the sentencing judge could not have had regard to the benchmark when he actually fixed the non-parole period. The period fixed is just in excess of half the head sentence.
Mr Press was asked from the bench whether, in the event that the offending was not at the lower end of the scale of objective seriousness, special reasons could still be found and result in a reduction from the four-fifths period prescribed. In other words, is it a pre-condition to reducing the non-parole period below four-fifths to have a finding that the crime fits at the lower end of the range of objective seriousness?
Mr Press answered that question by way of an example which I will repeat because in my view it indicates that some of the earlier statements made by the judges in the cases referred to above probably did not consider this possibility.
In giving his example Mr Press emphasised that the court would hardly ever be able to find special reasons where the crime was not at the lower end of the range of objective seriousness. His example was a person coming forward ten years after a murder, which is not at the lower end of the range of objective seriousness, which murder has been unsolved for those ten years. The offender comes forward and informs the authorities that he committed the murder, co-operates with the police, shows them where the body is but in addition adds that he committed the crime in conjunction with someone else and agrees to provide Crown evidence to inculpate the co-accused.
As a result, both are convicted. Mr Press says that notwithstanding in this example that this was an offence not at the lower end of the range of objective seriousness, the full and frank admissions in the circumstances outlined, where otherwise the offence would have remained unsolved, would enable a judge to find special reasons and reduce the statutory 20 years for non-parole for murder as the prescribed minimum.
In principle that seems to be a correct analysis and would be a case of special reasons operating to enable a reduction of the non-parole period below that nominated as the prescribed minimum even though the crime was not at the lower end of the range.
(ii) The respondent’s submissions
Mr Boucaut SC, counsel for the respondent, submitted that it was difficult to say where this matter fitted in the general scale of seriousness and pointed to the wide range of sentences for the offence of manslaughter. In his sentencing submissions before the judge he did not address this point.
He pointed to the evidence of the expert witness Brevet Sergeant Plummer in relation to the way in which this weapon could be fired. I have set out a summary of that evidence earlier in these reasons.
Mr Boucaut argued that the starting point of 11 years reduced to a head sentence of 9 years could not be used to infer that the sentencing judge considered this crime not at the lower end of the scale of objective seriousness. Put another way, Mr Boucaut was submitting that the judge may have considered this to be at the lower end of the scale but that the starting point necessarily reflected the respondent’s poor antecedents. It was submitted that a head sentence of 9 years for a person with bad antecedents does not necessarily give an indication of the degree of seriousness of the crime.
Mr Boucaut submitted that merely because an offence is not at the lower end in the range of objective seriousness does not preclude a finding of special reasons. I have already dealt with that aspect in considering the submissions of Mr Press, so that to that extent I agree with counsel. I repeat that this would not normally be the case, although the example given by Mr Press may be such a case.
Mr Boucaut submitted that the judge correctly considered s 32A(2)(b) and s 32A(3).
He argued that the judge was correct in finding that there were special reasons to fix a shorter non-parole period than four-fifths of the head sentence. He referred to the offer to plead guilty and the respondent’s co-operation with the police. After correctly finding special reasons, Mr Boucaut argued that it was open for the judge to go further than a “smaller variation around a higher benchmark” due to the respondent’s efforts at rehabilitation, lack of intent to discharge the firearm, his not being aware of the extent to which the firearm was unsafe, his attempts to remove Mr Lane from the premises, and finally his contrition.
With respect to the limitation on Crown appeals against sentence, Mr Boucaut relied on King CJ’s remarks in R v Osenkowski (1982) 30 SASR 212 at [212]-[213] and in R v Drewett (1983) 35 SASR 344 at 345-6. I will deal with that aspect separately.
Mr Boucaut did not accept the submissions of the Crown as to the operation of s 32A. This was in relation to the submission that when considering the non-parole period to be imposed, and after finding special reasons, the court is required to take into account the benchmark as distinct from exercising the broad sentencing discretions available normally. Mr Boucaut submitted that the section did not say that the benchmark had to be borne in mind, and that he therefore adopted the approach taken by Gray J in Barnett to which I referred earlier and upon which I will shortly elaborate.
The benchmark considerations
In Harkin Kelly J and I attempted to illustrate that the reasoning in the decisions in Ironside and Barnett was consistent. We set out our reasons for that at [34]-[40] inclusive. Gray J in Harkin, although agreeing with the decision of Kelly J and me, disagreed that there was any clear ratio as to the meaning and effect of s 32A which could be drawn from the decisions in Ironside and Barnett. He did not consider it necessary to consider any differences in those decisions in his reasons in Harkin.
There are some important statements as to the significance of the benchmark in those earlier cases. Doyle CJ said in Ironside at [38]:
[38]So, as I have said, the prescribed period is identified as a yardstick or benchmark. It is appropriate for an offence of the relevant kind at the lower end of the range of objective seriousness. Any aspects or circumstances of the particular offence that are referred to in s 32A(2) then have to be identified, and in light of those matters the particular offence has to be compared with the benchmark or yardstick, with a view to deciding whether the particular offence, in light of that comparison, warrants a non-parole period equal to, longer than or shorter than the prescribed period.
His Honour also said at [45]:
[45]When considering whether a non-parole period shorter than the prescribed period is appropriate, the court must again bear in mind that the prescribed period is an appropriate non-parole period for an offence at the lower end of the range of objective seriousness.
In Ironside Gray J set out at [122] excerpts from the Second Reading Speech introducing the amendments to the Sentencing Act. At [125] he referred to further discussions regarding the legislation at the time the amendment was introduced. In my view nothing in these speeches detracts in any way from the statements made by Doyle CJ.
Kourakis J agreed with Doyle CJ in Ironside. He also referred to the benchmark set by s 32(5)(ba) at [178]-[183]. He said at [179]:
[179]The difference between non-parole periods fixed pursuant to s 32(1) and those fixed in accordance with ss 32(5)(ba) and 32A of the Act is that there will be a smaller variation around a higher benchmark in the case of non-parole periods fixed pursuant to the latter provisions than in the former.
Kourakis J at [181] also said:
[181]… A finding of special reasons does not mean that the mandatory minimum non-parole period can be ignored.
I agree with the latter statement. In relation to the former, I query the statement as to smaller variations around a higher benchmark. I consider that may be an overstatement of the position, as I explain later.
In Barnett Gray J generally discussed the legislative regime introduced by s 32A of the Sentencing Act. His reasons were mainly concerned with the interpretation of the words “as it thinks fit” in s 32A(2)(b). I will come back to His Honour’s discussion regarding that aspect in due course but I am not in agreement with His Honour’s wide interpretation of that phrase in the context of the whole of the section.
Vanstone J in Barnett referred to the remarks of Doyle CJ in Ironside regarding the yardstick or benchmark and adopted them. Her Honour gave a practical approach to s 32A. At [50] she said:
[50]… In my view, in practical terms, special reasons to reduce the mandatory minimum non-parole period will only be found where, in the court’s evaluation of the matter as a whole, the court was prevented by s 32(5)(ba) from fixing a non-parole period which constituted a proportion of the head sentence less than four-fifths. In other words, only in circumstances where the court found itself constrained by s 32(5)(ba) from giving full weight to the prescribed matter, will the exercise result in a non-parole period bearing a lesser ratio to the head sentence than four-fifths.
Her Honour went on at [52]:
[52]…where, having considered all relevant matters, a sentencing judge determines that the offending is not at the lower end of the range, then there is no occasion to consider whether special reasons exist for fixing a non-parole period shorter than the mandatory minimum. The only question is, under s 32A(2)(a), whether a longer period is called for.
It appears that Her Honour was there referring to all relevant matters and not just to the matters relevant to the objective seriousness of the offence. If she was referring to all relevant matters then I agree with what Her Honour said in relation to the interpretation of s 32A generally.
Kourakis J in Barnett said at [73]:
[73]In the context, therefore, of the principles established by this Court for fixing a non-parole period, the statutory minimum is a floor fixed by Parliament which underpins the discretion conferred by s 21(1) of the Act. It is also a benchmark or yardstick against which longer non-parole periods and, where there are special reasons for fixing them, shorter non-parole periods must be measured.
[Footnote omitted]
His Honour also said at [74]:
[74]When s 32A is considered in the context of the principles to which I have referred, it is plain that a finding of special reasons by reference to the matters prescribed by s 32A(3) of the Act is not an abstract question. The discretion to fix a non-parole period below the mandatory minimum is not enlivened by the mere existence of one or more of the prescribed matters, nor even by a finding that there is something special about the prescribed matters in the facts of the particular offence for which a non-parole period is being fixed. Rather, the Court can only fix a non-parole period below the mandatory minimum if it is satisfied that “special reasons exist for fixing a non-parole period that is shorter than the prescribed period” (emphasis added). Combining sub-sections (2) and (3) of s 32A, the relevant question for the sentencing Court is whether, having regard to the mitigating circumstances in which the offence was committed, the plea of guilty and the degree of co-operation, there is special or sufficient reason to allow an exception to the prescribed benchmark in the particular case. It could hardly be otherwise. The prescribed matters cannot be weighed in a vacuum. Indeed, s 32A(3) expressly directs that the Court is to have regard to the prescribed matters “for the purposes” of considering whether special reasons exist to fix a shorter non-parole period than the mandatory minimum.
Again, I adopt those reasons in respect to the importance of the benchmark or yardstick and the fact that it has to be constantly borne in mind when all aspects of s 32A are considered.
Kourakis J returned to the benchmark at [92]:
[92]… However, the Court must also have regard to the benchmark established by the mandatory minimum. To do otherwise would lead to significant disparity between those cases where there are special reasons and those where there are not. …
[Footnote omitted]
Although further considerations have now arisen by virtue of the argument in this matter, Kelly J and I in Harkin were pointing to the earlier judgments as illustrating the need to keep in mind the statutory benchmark at all stages of the fixing of the non-parole period pursuant to s 32A.
As we indicated in our reasons, there did not appear to be any difference of substance in the statements made by the members of the court in Ironside or Barnett on that aspect.
The limitations on the use of discretion
Mr Press submitted that once a determination has been made that special reasons exist, it is not then appropriate to fix a non-parole period without limitation by using a broad general sentencing discretion.
In my view it is clear that Parliament intended that in each step taken by a judge in using s 32A to fix a non-parole period the judge must bear in mind the prescribed minimum, in this case four-fifths, as a control or regulatory mechanism to ensure that there is no disparity in the length of the non-parole period merely because special reasons have been found.
Gray J in Barnett considered that the words “as it thinks fit” in s 32A(2)(b) meant that the discretion “is to be exercised in a manner that the judge or court, in the exercise of their discretion, considers appropriate in the circumstances”: see Barnett at [30]. He went on to say at [31]:
[31]Section 32A represents a significant fetter on what is otherwise a wide judicial sentencing discretion. As noted, the phrase “as it thinks fit” connotes a wide discretion. The use of these words and their import indicate that once the discretion in section 32A not to impose the prescribed minimum non-parole period is enlivened, sentencing is no longer to be guided by that provision. Instead, the judge or court is to sentence “as it thinks fit” utilising their discretion in accordance with conventional sentencing principles. Had Parliament intended to limit the discretion conferred by the phrase “as it thinks fit” in any way, it could have done so.
To the extent that this passage may suggest that the benchmark ceases to be relevant once special reasons have been found and the court is fixing a different non-parole period, then I disagree. As I have said, I consider that Parliament intended that the four-fifths benchmark was to remain a controlling or regulating factor after special reasons were found. Section 32A prescribes a regime for fixing non-parole periods which is based on the mandatory minimum non-parole period prescribed.
Perhaps the statement by Kourakis J in Ironside at [179], namely that there will be “a smaller variation around a higher benchmark”, although adopted by Vanstone J in Barnett at [49] is, on reflection, perhaps not always the case. Whilst it may be so in a case where the four-fifths rule is applicable as the prescribed minimum, as it was in Ironside, Barnett and Harkin, it seems to me that there could be larger variations when dealing with special reasons to reduce the prescribed minimum non-parole period for murder below 20 years. There is less margin for variation, on a pure mathematical basis, around the four-fifths prescribed than there is around 20 years for murder, which is more open-ended. It is not my view that there must necessarily be “a smaller variation around a higher benchmark”, although that may well occur in most cases.
As I have said, Mr Boucaut adopted the reasoning of Gray J in his submissions. I do not agree with the reasoning of Gray J in Barnett. Section 32(5)(ba) sets the benchmark. In my view it is not logical to say that because special reasons have been found to exist the judge can then ignore the benchmark and revert to broad sentencing discretions at large. It is contrary to the intention of the whole section and is really reading s 32A(2)(b) as an isolated section, that is, in isolation from the rest of s 32A. In my view it should not be so isolated.
The application of s 32A in this matter
There is no doubt, in my view, that there is present in this matter at least one of the qualifying matters, namely co-operation, under s 32A(3)(c). I do not consider that the early offer to plead to manslaughter can bring the respondent within s 32A(3)(b). He did not plead guilty. He offered to plead guilty prior to trial. There is a difference in an offer to the DPP to plead guilty with an offer to plead guilty on arraignment. There is a question, in my view, as to whether an offer to plead was intended by Parliament to be relevant under s 32A(3)(c). The judge did not indicate whether he found both (b) and (c) as special reasons, or merely (c). It is not necessary for this decision because of the presence of one of the qualifying matters I would await an appropriate case in which to decide this.
That offer to plead guilty to manslaughter made by the respondent, together with the other factors mentioned by the judge, may have been considered by him as relevant to subsection (c). The judge was entitled to find that the aspect of co-operation opened the gateway for a consideration of whether special reasons existed. That is not to say that special reasons did exist for fixing a non-parole period shorter than four-fifths of the head sentence.
As I have indicated earlier, this was not in my estimation a crime which could be categorised as being at the lower end of the range of objective seriousness. I have earlier set out the reasons advanced by Mr Press for that contention. I agree with his summary. Each of those matters is persuasive and points to the conclusion that the judge must have found that the offending did not fall at the lower end of the range of objective seriousness.
After considering s 32A(3), and being satisfied of one or more of the three qualifying matters in that subsection, the judge was then required to remind himself of the benchmark before departing from it. As I have said, the mere finding of one of the qualifying matters is simply the gateway or threshold to enable a consideration of whether, under s 32A(2)(b), the special reasons might amount to such as to justify a reduction of the four-fifths non-parole period. The benchmark assumes importance at all stages of the consideration under s 32A. It is not automatic that the finding of one of the qualifying matters will lead to a reduction below four-fifths. It is a two-stage process.
It is not clear how the judge carried out the exercise pursuant to s 32A. There is no suggestion from his sentencing remarks that he directed himself as to the benchmark before deciding to go below four-fifths. It is not clear from the sentencing remarks whether he regarded this matter as being at the lower end of the range of objective seriousness. As I pointed out earlier in these reasons, the nature and circumstances of the offending point to the opposite conclusion.
Given the nature and circumstances of the offending and the fact that I do not consider that the judge found it to be at the lower end, what is the likely explanation for fixing the non-parole period at less than four-fifths? In my view the judge, having found special reasons existed, must have directed himself that according to s 32A(2)(b) he was entitled or permitted to use his broad discretion and fix such shorter period as he saw fit. In my view the judge must have used such a broad general discretion without regard to the benchmark to finally fix upon a non-parole period of 5 years.
Four-fifths of the 9 years head sentence amounts to 7 years 2 months and 12 days. I cannot see any other basis on which the judge could have reached the non-parole period of 5 years. As I have indicated elsewhere, in my view, that is an error because that is taking the words in s 32A(2)(b) in isolation from the intent and meaning of the whole of s 32A.
If I am wrong, and the judge did consider the offending to be at the lower end of the range, then in my view, he has erred in going so far below the benchmark. In my view, he could not have had regard to that benchmark, even given the nature of the co-operation, which, although of some significance, could not account for a variation from four-fifths of the head sentence to something just over half.
The principles in prosecution appeals against sentence
Having decided that the judge erred, I turn to the question of whether the appeal should be allowed.
Mr Boucaut referred to R v Osenkowski (1982) 30 SASR 212 per King CJ at 212-213. His Honour said:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
Mr Boucaut went on to emphasise some further remarks by King CJ in R v Drewett (1983) 35 SASR 344 at 345-6 where His Honour said:
Mere disparity, however, even great disparity between the sentence imposed and the sentence which the appellate court would regard as appropriate, does not of itself justify allowing a prosecution appeal against sentence. I think that it is clear that appeals by the prosecution against sentence cannot be decided on the same basis as defence appeals against sentence. … An appellate court should be cautious about allowing a prosecution appeal against sentence, thereby taking a second bite at the sentencing process for the purpose of imposing a more severe penalty on a prisoner. It seems to me that it should only be done where it is necessary to achieve one of the legitimate purposes of prosecution appeals against sentence to which I referred in R v Osenkowski.
Mr Boucaut submitted that, having regard to the circumstances of the offending and the particular circumstances of the respondent, the sentence imposed cannot be said to “shock the public conscience”. Mr Boucaut submitted that the particular matters the sentencing judge had regard to were:
(a) the offence occurred in the context of the respondent endeavouring to remove his violent co-accused from the premises;
(b) the firearm was not intended to be discharged and was produced by the respondent to menace when he perceived himself to be in danger; and
(c) the respondent was not aware as to the extent to which the firearm was unsafe.
Mr Boucaut reminded the court that the sentencing judge had the advantage of assessing the level of contrition as observed in the course of the interviews conducted by the investigating police officers. He submitted that the sentencing judge was entitled to the view that the level of contrition was genuine. Therefore, Mr Boucaut submitted, the judge was entitled to conclude that the respondent was an appropriate candidate for a low non-parole period.
Conclusion
In my view there would be much to be said for those submissions made by Mr Boucaut in a matter which did not involve s 32A. The strictures placed upon the court – because it is a prosecution appeal against sentence – do not apply if there is a demonstrable error in the sentencing process. In my view, what has occurred in the sentencing process in this matter requires the interference of this Court to “establish and maintain adequate standards of punishment”, having regard to the relatively recent enactment of s 32A.
In my view, permission to appeal should be allowed for the purpose of reviewing the approach taken by the sentencing judge to s 32A and to emphasise the fact that the sentencing remarks did not exhibit a sufficient degree of transparency in the application of the section which in my view is required.
The disparity between the sentence imposed by the sentencing judge and that which I might regard as appropriate would not be a sufficient justification for allowing the prosecution appeal. However, where it seems apparent that the judge has not properly directed himself on s 32A, I would allow the appeal and substitute a non-parole period of 7 years 2 months and 12 days to represent four-fifths of the head sentence for a crime which was not at the lower end of the range of objective seriousness.
I would therefore grant permission to appeal and allow the appeal for the reasons given.
DAVID J: I have had the advantage of reading the reasons of Anderson J and I respectfully adopt his summary of the background of the respondent’s offending, the personal history of the respondent, and the arguments on appeal of both the Crown and the respondent.
I also observe that there is no appeal against the head sentence of imprisonment for nine years reduced from 11 years on account of the respondent’s offer to plead guilty to manslaughter. As has been noted, he was convicted by a verdict of a jury of manslaughter on a trial for murder. I agree also with Anderson J’s conclusion that the early offer to plead to manslaughter could not bring the respondent within s 32A(3)(b) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”). I am of the view that the offer to plead does satisfy s 32A(3)(c) of the Act.
I am grateful for Anderson J’s comments about the principles to be observed in prosecution appeals against sentence and his reference to the well‑established cases of R v Osenkowski[1] and R v Drewett.[2]
[2] R v Drewett (1983) 35 SASR 344.
However, I have a different view to that expressed by Anderson J of the function of s 32(5)(ba) and s 32A of the Act. I set out the relevant legislation:
32—Duty of court to fix or extend non-parole periods
...
(5)…
(ba) if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four fifths the length of the sentence;
…
32A—Mandatory minimum non-parole periods and proportionality
(1)If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non parole period applies.
(2)In fixing a non-parole period in respect of an offence for which a mandatory minimum non parole period is prescribed, the court may—
(a) if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b) if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a) the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b) if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c) the degree to which the offender has co operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co operation.
(4)This section applies whether a mandatory minimum non parole period is prescribed under this Act or some other Act.
I am mindful of the decisions of this Court in R v Ironside[3] and R v Barnett.[4] The more pertinent parts of the judgments in those cases have been set out in the judgment of Anderson J. The issue in the present case is whether the sentencing Judge erred when considering s 32A. Whether he was in error in his remarks depends upon the view to be taken of the purpose and scope of the legislation.
[3] [2009] SASC 151.
[4] [2009] SASC 332.
As I understand the argument and the thrust of some of the remarks from the above cases, it is suggested that the scope of the sentencing Judge’s discretion once special reasons pursuant to s 32A(3) are made out is further fettered. The appellant in this case argues that, even though the sentencing Judge may set a non‑parole period shorter than the mandatory minimum because special reasons exist, he would not do that unless the offending was at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies. For that to happen, the sentencing Judge therefore must decide whether the offending comes within that category before he can shorten the mandatory minimum non‑parole period. At the very least, there will be very rare occasions where the mandatory minimum non‑parole period can be shortened despite passing the special reasons test when the offending had exceeded that at the lower end of the range of objective seriousness. In my view this argument should be rejected.
To some degree in the above cases the Chief Justice, Justice Anderson, Justice Vanstone, Justice Kelly and Justice Kourakis agree in principle.[5] However, a careful review of the reasons of Doyle CJ in Ironside does not disclose any suggestion that there is any fetter on a Judge’s discretion to fix a shorter non-parole period once that discretion has been enlivened and the Judge has decided to exercise that discretion.
There is nothing as I understand the reasons of Doyle CJ to suggest a reading down of the phrase “as it thinks fit”. Doyle CJ points out that one circumstance to which the Judge is to have regard to when determining an appropriate non-parole period, is the very statutory regime of s 32A itself. However, Doyle CJ does not suggest that this factor is of any more weight than any other relevant circumstance. There is no suggestion in the reasons of Doyle CJ that this consideration imposes any fetter on the sentencing discretion.
Justice Gray, in Barnett, was of the view that once the special reasons test had been satisfied then the sentencing Judge can fix a non‑parole period shorter than the mandatory minimum ‘as it thinks fit’. To support that interpretation he relies upon the express wording of s 32A(2)(b):[6]
Section 32A represents a significant fetter on what is otherwise a wide judicial sentencing discretion. As noted, the phrase “as it thinks fit” connotes a wide discretion. The use of these words and their import indicate that once the discretion in section 32A not to impose the prescribed minimum non-parole period is enlivened, sentencing is no longer to be guided by that provision. Instead, the judge or court is to sentence “as it thinks fit” utilising their discretion in accordance with conventional sentencing principles. Had Parliament intended to limit the discretion conferred by the phrase “as it thinks fit” in any way, it could have done so.
[6] R v Barnett [2009] SASC 332 at [31].
I can find nothing in the legislation which instructs the Court that, once the special reasons test has been passed, there is a further requirement that, before a shorter non-parole period can come into effect, the offending must be at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies. In my view, the purpose of s 32A(1) is to make clear that the setting of a non‑parole period of four-fifths of the length of the sentence, as prescribed by s 32(5)(ba) of the Act, only applies to offending at the lower end and a court need not be bound by that minimum period but can impose a longer non‑parole period in appropriate circumstances.
The three bases for the special reasons test to shorten the minimum period, as set out in s 32A(3), are very specific. As a matter of logic and policy, there is no reason why those special reasons should not attach to offending whether it be at the higher or lower end of objective seriousness. If, as a matter of fairness, the Draconian setting of a minimum non-parole period is to be mitigated by the behaviour of the victim it would be less effective if it only applied to offences at the lower end of the scale. Similarly, the clear policy consideration to encourage an accused person to plead guilty at an early stage and own up to their offending and co-operate with the authorities would be less effective if once again it was only meant to apply to offences considered to be at the lower end of the range of objective seriousness. This would act as a disincentive to plead guilty or co-operate with police where the circumstances of the offence exceed that at the lower end of the range of seriousness. Such a result is surely not desirable, and unlikely to have been intended by Parliament.
Once special reasons have been found to exist, a sentencing judge must then proceed to sentence in the normal way, which would necessarily include considering the seriousness of the offence.
Of course, a sentencing judge, having decided that special reasons exist, may still decide not to fix a shorter non‑parole period due to various other factors relevant in the sentencing process.
Therefore, I am of the view that a sentencing judge need not make a specific finding that the offending is at the upper or lower end of objective seriousness.
The Present Case
In the present case the sentencing Judge made the following remarks:
In setting a non-parole period, the prosecution has urged that I should set a mandatory minimum non-parole period of at least four-fifths of the head sentence. I have considered s.32A(3) of the Criminal Law (Sentencing) Act (1988) which provides that if special reasons exist I am entitled to fix a non-parole period that is shorter than the prescribed period of four-fifths of the head sentence.
In my view, having regard to your cooperation in the investigation and your cooperation in the prosecution of the offence, and to those matters I have referred to in these reasons and, in particular, your frankness with the police when interviewed, your assistance to the police in taking them to recover the weapon, and your earlier offer to plead guilty to manslaughter, I am satisfied that special reasons do exist and that I can apply a non‑parole period of less than the prescribed minimum.
The sentencing Judge was correct in saying that the co-operation of the respondent amounted to special reasons. He was also correct in saying that he could therefore apply a non‑parole period shorter than the prescribed minimum. The appellant criticises him for not making a decision as to whether the offending was at the lower end of the range of objective seriousness for offences to which a statutory minimum non‑parole period applies. In my view, as I have indicated, that is not a prerequisite to shortening the mandatory minimum non‑parole period. The Judge set out the basis of fact clearly and his description of the offence spoke for itself. There was no need to label it any further.
There has been no error in the Judge’s application of s 32A of the Act. In my view there is no other basis to interfere with the sentence.
I would refuse permission to appeal and would dismiss the appeal.
PEEK J. This is an application by the Director of Public Prosecutions for permission to appeal against a sentence imposed for a conviction of manslaughter following a trial on a charge of murder.
Background and the factual basis of sentencing
I have had the advantage of reading the draft reasons of Anderson and David JJ. Since I differ from Anderson J as to the result of this application it is appropriate that I set out my reasons for doing so in at least some detail.
The respondent was charged with murder. He formally offered by letter to plead guilty to manslaughter prior to being committed for trial but such offer was formally refused by the DPP. The respondent stood trial on the charge of murder and was acquitted of that charge but convicted of manslaughter. His co-accused, Mr Lane, was acquitted of both charges. The trial Judge found that the basis upon which the respondent was to be sentenced was as follows.
On New Year’s Eve 2008, the respondent was hosting a party at his home and became quite intoxicated. During the course of the evening, he was approached by Mr Lane and asked to help in relation to some trouble at another address. The respondent retrieved a firearm hidden in his roof which was loaded with a single .22 rim fire cartridge and took this with him to the other premises; he had previously found this firearm at a dump and it was in a very poor and unsafe condition. After walking to the other premises, the respondent was generally trying to calm things down when an object was thrown in his direction. The respondent believed that it was a beer bottle thrown by the deceased but there was insufficient evidence to make any clear finding as to this.
As to what followed, his Honour stated:
When you were interviewed by the police you told them that you came out of the house after stopping Mr Lane from punching Ms Poskus, when someone from the side of the car threw a Crown Lager bottle at you. You told the police that you just picked the gun up and pointed it towards Mr Bamford and that it discharged and he just fell to the ground, but you did not know that you had actually hit him.
In sentencing you, I accept that you believed that something had been thrown in your direction. I am not satisfied that Mr Bamford threw anything in your direction.
In sentencing you, I do so on the basis that you pointed the loaded gun at Mr Bamford and you cocked it. The gun discharged. I accept that at the time you did not intend to fire the gun. The bullet passed through Mr Bamford’s arm in a downward direction and entered the aorta, which is the main blood vessel of the body. As a result it would have caused an immediate substantial loss of blood resulting in loss of consciousness and death within a very short time. You and Mr Lane left the scene after the shooting.
I accept that you panicked. I am satisfied that you panicked because you knew you had shot Mr Bamford. I do not accept your version that you did not realise Mr Bamford had been shot. You told the police that, after you left the house, you threw the gun parts away and then went back home. You went to bed. You told them that you were in shock because you had not intended the gun to discharge.
The trial Judge found that the respondent had cooperated with police after his arrest and had substantially assisted them with their enquiries both in relation to his admissions that he had shot the deceased and in taking the police to areas where he had thrown away parts of the gun used. His Honour stated:
You immediately admitted your involvement. You told the police that you did not intend to kill Mr Bamford, that your intention was to menace people with the gun.
Later on the same evening you accompanied police to Davoren Park and you took them to areas where you had thrown away parts of the gun. The police recovered the parts of the weapon in the areas to which you took them.
After your arrest at Broken Hill you cooperated with the police. You immediately admitted your involvement and you assisted them in finding the weapon that had been used. I accept that you assisted the police in their investigations and your assistance would have made their task easier.
As I have observed, the witnesses who were present when Mr Bamford was shot all gave different versions of the incident. Your admissions as to what occurred assisted the prosecution case. You maintained your version throughout. There was never a dispute about who it was who had shot Mr Bamford.
You continued to cooperate throughout and at a very early stage in the proceedings offered to plead guilty to manslaughter. If that offer had been accepted the prosecution would have avoided a lengthy trial and the matter would have been disposed of without the additional cost of a trial.
You have consistently maintained the position that you were guilty of manslaughter. The jury verdict was in accord with your version of events and confirmed your offer to plead guilty to manslaughter. Once the Director of Public Prosecutions had rejected your offer to plead guilty to manslaughter, you maintained a plea of not guilty to murder. You could have pleaded guilty to manslaughter when you were arraigned but you were aware that the prosecution would not accept that plea in answer to the charge. I am treating you on the basis that at all times if the Director of Public Prosecutions had agreed to your offer you would have pleaded guilty. That offer was made at the earliest opportunity.
His Honour also found that the respondent was positively contrite in a way that extended beyond a mere plea of guilty. His Honour stated:
In your interview with the police you expressed your distress and contrition. I have viewed the videotape of your interviews and I accept that you are truly contrite and continue to be truly distressed by what occurred. I am told by your counsel that you wrote a letter to the family of the deceased expressing your contrition, but that was only provided to them after your trial, based upon the advice of your lawyer.
His Honour found that the respondent had had an unfortunate childhood. He had been adopted out because his mother was only 16 years of age. He was made a ward of the state and placed in various foster homes. His education was poor and he only learned to read at a later stage of his life when he was in gaol.
The respondent had a bad criminal record in Western Australia including serious offences of violence and armed robbery. After being released from prison there, he moved to South Australia in 1999 to make a fresh start and was in regular employment until November 2007 when he unfortunately suffered a serious industrial accident involving severe burns. His Honour stated:
After your release you moved to South Australia in 1999, having decided that you needed to get away from your associates. You decided to try and lead a useful life. Your then wife came with you but she left you shortly after you came to South Australia. You then met your current partner, who continues to support you.
After you came to South Australia you were in regular employment until November 2007, when you suffered a serious industrial accident when the welding gear which you were using malfunctioned. You suffered severe burns. You continue to suffer symptoms of post traumatic stress from the accident.
After the accident you self-medicated by using cannabis and drinking to excess. I have had regard to a psychological report of Ms Carol Cayley, who considers that you are suffering from a post-traumatic stress disorder as a result of the injuries you sustained during the work accident. She considers that you were also dependent on alcohol and cannabis at the time of the shooting.
When she assessed you she observed that you did not in any way attempt to excuse your conduct by referring to your disorders or alcohol and drug dependence. Your responses to her are consistent with your attitude from the time police first interviewed you that you accept responsibility for what has occurred. You have not attempted to excuse your conduct in any way. Dr Cayley recommends that you continue to receive treatment for your psychological conditions. She also recommends that you receive some cognitive skills training treatment and psychiatric review.
In sentencing you, I have had regard to your personal circumstances. I accept that, since 1999, you have attempted to get your life into order and that you have been substantially successful in doing so, other than for some minor breaches of the law. I accept that you were well on the way to rehabilitating yourself.
The offending is of a different character to the past offending in that you were neither looking for trouble nor were you involved in any form of robbery. You went to Pix Road because Mr Lane sought your assistance.
On the other hand, you are responsible for having taken a loaded firearm with you and producing it and pointing it at Mr Bamford. The penalty I intend to impose must reflect the seriousness of your conduct and the fact that a person has died as a consequence. The sentence must deter others who might be inclined to carry loaded firearms. I am satisfied that you are truly contrite and that you are unlikely to offend in a similar way in the future.
His Honour imposed a head sentence of nine years indicating that he had reduced it from a starting point of eleven years having regard to the circumstances surrounding the offer to plead.
As to the non-parole period, his Honour first found that there were special circumstances sufficient to reduce the non-parole period below the prescribed minimum of 80% of the head sentence, correctly restricting himself at that stage to only those matters which qualified as special reasons.
His Honour then proceeded to the second stage, that of fixing the length of a non-parole period that qualified to be under the usual minimum. His Honour had in the course of his remarks referred to a number of matters which militated towards leniency but did not come within the meaning of “special reasons” in any of ss 32A(3)(a)–(c). At this second stage his Honour took those matters into account together with the matters that did constitute special reasons. That this is so is confirmed by his Honour's statement:
Having regard to all the matters to which I have referred I set a non-parole period of five years imprisonment. (emphasis added)
As will be seen below, in my view his Honour was correct in the way that his Honour approached this task.
The legislation
Section 32(5)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) (hereafter referred to as “the Act”) provides:
(ba)if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four-fifths the length of the sentence;
Section 32(10) of the Act defines the phrase “serious offence against the person” so as to include the offence of manslaughter.
Section 32A of the Act provides:
32A—Mandatory minimum non-parole periods and proportionality
(1) If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non-parole period applies.
(2) In fixing a non-parole period in respect of an offence for which a mandatory minimum non-parole period is prescribed, the court may—
(a)if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b)if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3) In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b)if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c)the degree to which the offender has co-operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co-operation.
This section applies whether a mandatory minimum non-parole period is prescribed under this Act or some other Act.
General principles relating to prosecution appeals
A strict approach is rightly taken in relation to the granting of permission to appeal for prosecution appeals against sentence. It is axiomatic that permission cannot be granted with a view to increasing a sentence merely because it appears too lenient. In R v Osenkowski,[7] King CJ formulated the central principles governing prosecution appeals in a way that has since generally been treated as the locus classicus. His Honour stated:[8]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals in my view, to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
[7] (1982) 30 SASR 212.
[8] R v Osenkowski (1982) 30 SASR 212 at 212–213.
It may be helpful to add two comments in relation to the above passage. The first comment concerns the last phrase “as to shock the public conscience”. Although his Honour was no doubt intending to postulate a very high hurdle to be overcome, the phrase has since come to be used on occasions in a highly emotive fashion which may tend to blur rather than sharpen analysis. Thus Perry J, with whom Doyle CJ agreed, observed in R v Sioziz:[9]
[20]In considering whether it is proper to give leave to the Crown to appeal against sentence, I am not sure that the expression "shock the public conscience" by reference to the sentence under appeal, should now be, or form part of, the appropriate test. There is much evidence to suggest that these days, the public conscience is easily shocked. It is an emotive expression which I tend to think ought no longer to be regarded as an appropriate test to apply in determining whether leave to appeal against sentence should be granted in favour of the Crown.
[21]I think that it is better to adopt as the appropriate principle which should inform the Court in the exercise of its discretion to grant leave to appeal to the Crown, the formulation which finds expression in the joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen, namely, that the Crown should be given leave to appeal against sentence “only in the rare and exceptional case”, which would ordinarily confine intervention by the Court of Criminal Appeal to cases where it is necessary to avoid “the kind of manifest inadequacy or inconsistency in sentencing standards” which might properly be described as constituting “error in point of principle”.
[9] (2004) 236 LSJS 88.
The second comment is that in Everett v The Queen,[10] Brennan, Deane, Dawson, Gaudron JJ emphasised that the power to grant permission to appeal “should be exercised only in the rare and exceptional case”, stating:[11]
…[A] court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.
[10] (1994) 181 CLR 295.
[11] Everett v The Queen (1994) 181 CLR 295, 299.
In other words, it is neither the legal position, nor the practical position, that a finding that a particular offence is not at the lower end of the range of objective seriousness has the consequence that a non-parole period cannot, or should not, be fixed below the 80% level; it all depends upon a consideration and balancing of all of the circumstances and factors in the particular case.
Stage 2: The substantive fixing of the non-parole period
If an applicant has succeeded at the special reasons preliminary inquiry, attention then moves to the substantive task of deciding the precise length of that non-parole period.
One question that arises here is as to whether it is permissible to have regard, not only to the matters referred to in ss 32A(3)(a)–(c) as special reasons, but also to other relevant matters.
What the attitude of the DPP to this question was at the hearing was initially not clear to me,[36] particularly against the background that the DPP had previously on occasions taken the position that even when ultimately fixing the length of the non-parole period below 80%, the court may only take into account the matters contained in ss 32A(3)(a)–(c).[37]
[36] The Outline of Argument as filed simply stated at [24]: “As to what may be taken into account after a finding of special reasons has been made and when fixing the shorter non parole period it is submitted there is a divergence of views.” A footnote refers to some passages in the decisions of R v Ironside and R v Barnett but nowhere does the Outline of Argument state what the position of the DPP was on the matter.
[37] For example, this was the stance taken by the DPP in R v Nathan Jai Pompey on 22 April 2009, Port Augusta Circuit No. 91/2006. Layton J’s remarks in this matter are considered in detail below.
However, during the course of argument the DPP supplied a helpful supplementary document for which I am grateful and which states inter alia:
If the court determines that special reasons do exist, then it is submitted the court will fix the non-parole period by taking into account all relevant matters and circumstances in relation to the offence and the offender (the same process as a court normally undertakes when no prescribed minimum is set) but it will do so bearing in mind that 4/5ths of the head sentence is the minimum non-parole period for offences at the lower end of the range of objective seriousness. (emphasis added)
As to the first part of this passage (that in emphasis), it is, with respect, a clear and unequivocal statement. I assume that it represents the present and future uniform position of the Office of the DPP in relation to this matter. As it happens, I agree with it.
Further, I consider it highly likely that this was also generally the view of Sulan J to be implied from his Honour’s sentencing remarks for the reasons stated above.
I also consider that the views of Doyle CJ expressed in R v Ironside[38] are not contrary to the taking into account of not only the special reasons, but also all of the circumstances ordinarily relevant to the fixing of a non-parole period at the stage of actually fixing the length of a non-parole period that qualifies to be fixed below 80% of the head sentence. In Ironside, his Honour did not venture beyond that preliminary inquiry phase to consider what was the subsequent nuts and bolts process by which the actual length of a qualifying non-parole period was to be fixed because, as his Honour explained, the circumstances of the case did not require him to do so.
[38] (2009) 104 SASR 54.
I also consider that Kourakis J in R v Barnett was of the view that it is permissible when fixing the non-parole period to have regard not only to the matters contained in ss 32A(3)(a)–(c) but also to all other relevant matters.[39]
To what extent is it necessary to have regard to s 32A(1) when fixing a non-parole period below the mandatory 80%?
[39] The passages I have in mind occur in his Honour's judgment in R v Barnett [2009] SASC 332 at [58] and [74] (the prescribed matters can not be weighed in a vacuum), [79] (weighing the prescribed matters against the circumstances of the offence and the offender) and particularly at [92] where his Honour stated: “If the question whether there are special reasons to reduce the mandatory non-parole period is answered in the affirmative, then the next step is to determine the length of the non-parole period. In exercising the discretion to ‘fix such shorter non-parole period as it thinks fit’, the Court must have regard to all of the circumstances ordinarily relevant to the fixing of a non-parole period.” (emphasis added). It may be that some of the passage in his Honour’s judgment in R v Ironside, taken alone, might tend to indicate a different result.
The next question that arises is as to the extent to which it is necessary to have regard to s 32A(1) during the substantive fixing of a non-parole period below the mandatory 80% of the head sentence.
As stated above, counsel for the DPP, in the first portion of the above extract from his supplementary document, suggests that when the court proceeds to fix the length of a sub 80% non-parole period it will do so by taking into account all relevant matters and circumstances in relation to the offence and the offender (the same process as a court normally undertakes when no prescribed minimum is set) but adds, in the second part of the passage that it:
…will do so bearing in mind that 4/5ths of the head sentence is the minimum non parole period for offences at the lower end of the range of objective seriousness.
Again, this is a carefully drafted passage and deserves close attention. In order to consider it, I first turn to the judgment of Gray J in R v Barnett[40] and particularly his Honour’s following summary:[41]
Having regard to the above discussion, the process provided by section 32A may be described in the following way. The court is to determine whether factual circumstances that may give rise to special reasons and enliven the discretion have been established. Once so satisfied, the court is to determine whether it is satisfied that special reasons exist, having regard to those matters, and only those matters. Having found special reasons to exist, the court, in its unfettered discretion, is to fix such shorter non-parole period “as it thinks fit”. The discretion is to be exercised having regard to the relevant legal authorities and in particular having regard to the matters identified in section 10 of the Sentencing Act.
[40] [2009] SASC 332.
[41] R v Barnett [2009] SASC 332 at [32].
I agree, of course, with his Honour’s statement that, having found special reasons to exist, the Court will proceed to take into account all factors and not just those qualifying as special reasons. I also agree that the words “as it thinks fit” connotes a very broad discretion.
However, noting his Honour’s strong emphasis on the phrases “as it thinks fit” and “unfettered discretion”, I gather that it is his Honour’s view that s 32A(1) has no part at all to play at this later phase. If that is in fact his Honour’s view, then, with respect, I would not agree.
I agree that the discretion is “unfettered” – but I would prefer to say, unfettered in the sense of being subject to no qualifying condition precedent to its operation. I think that there is a sense in which one should “bear in mind” that 80% of the head sentence is usually the mandatory minimum percentage non-parole period for offences at the lower end of the range of objective seriousness and I formulate the way in which I consider that this is to be done below.
Before doing so, it is appropriate to note that Layton J considered this matter when sentencing for a murder conviction in the matter of R v Nathan Jai Pompey on 22 April 2009,[42] in the context of a previous different stance by the DPP that only special circumstances could be taken into account even at the ultimate stage of fixing the non-parole period.
[42] Port Augusta Circuit No. 91/2006.
This was a sentencing decision that predated the judgments of the Court of Criminal Appeal in both R v Ironside[43] and R v Barnett[44] but, since her Honour’s views have not previously been referred to in the reported debate, it is worth reproducing a substantial portion of her sentencing remarks. Her Honour stated:
Section 32A(2)(b) of the Act provides that if the court is satisfied that special reasons exist then it may “fix such shorter period as it (the court) thinks fit”. In this case the DPP concedes, and in my view correctly, that special reasons exist in your case for fixing a shorter non-parole period than 20 years. The special reason is your plea of guilty together with the circumstances surrounding your plea, pursuant to s32A(3)(b) of the Act.
Both counsel raised as an issue what matters I should take into account when fixing a non-parole period which is less than the minimum because of the existence of the special reason.
In short, the DPP submitted that I am only able to take into account the special reason, namely your plea of guilty and the circumstances surrounding that plea, and no more. Your counsel submitted, that having found that a special reason exists, I may also take into account other factors which are usually relevant to the fixing of a non-parole period, such as prospects of rehabilitation and your personal circumstances. In addition, your counsel indicated that having found a special reason I should not be confined in any way by the 20 year mandatory minimum non-parole period.
Counsel for the DPP in support of the DPP’s interpretation, submitted that in enacting a mandatory minimum non-parole period, parliament intended to reflect the standard which should be applied for general deterrence for the particular crime. I accept that submission. However, I reject the argument that the legislation indicates that in fixing a non-parole period where special reasons exist, the court is confined to consider only the special reasons and no other factor.
It is not appropriate to set out in great detail in these sentencing remarks all of my reasons for rejecting the argument of the DPP. In short, I consider that the provisions of sub sections 32(5)(ab) and 32A(2)(b) and (3) only fetter the discretion of the court by modifying the actual period of the parole by indicating a mandatory minimum non-parole period which demonstrates the legislative concern in respect of general deterrence. These provisions do not purport to modify or limit the matters that the court usually takes into account when fixing a non-parole period. The provisions of s 32A prescribe the grounds for allowing the court to fix a lower non-parole period than the statutory minimum. There is no indication in the legislation that, having found special reasons exist, the court is thereby limited to an exercise of fixing the non-parole period to the applicable having regard to the applicable special reason factors only. The wording of s 32A(2)(b) suggests to the contrary.
An ordinary reading of the section as a whole expresses that special reasons are limited to the matters contained in s 32A(3)(a) to (c) and no other matters. Having decided that one or more of the special reasons exist, s 32A(2)(b) enables the court to fix a non-parole period “as it thinks fit”. The provision neither expressly or impliedly indicates that the court is confined only to the special reasons.
It would make little sense to interpret the provisions of the Act so that different sentencing principles apply in relation to the fixing of a non-parole period depending on whether offences attract a mandatory minimum non-parole period and whether or not special reasons apply. The same sentencing principles should still apply to all. The only matter which changes is the precise period fixed which will depend on the nature of the offences for which a mandatory minimum is set, but which may be reduced if there are special reasons. However, the mandatory minimum non-parole period will still guide the court in the fixing of a non-parole period, as indeed does the head sentence. These mandatory provisions in the Act clearly demonstrate the intention of parliament in relation to general deterrence in these types of serious offending. I reject the argument of your counsel that the statutory period is thereafter no longer relevant. (emphasis added)
[43] (2009) 104 SASR 54.
[44] [2009] SASC 332.
It can be seen that her Honour arrived at much the same substantive conclusion to which Gray J was later to come in R v Barnett.[45]However, her Honour adds the comment at the end of the passage, in emphasis above, that s 32A(1) still has some part to play at this later phase and uses the term “guide” in this context.
[45] [2009] SASC 332.
The facts of, and the result in, the sentencing process in R v Nathan Jai Pompey demonstrate that her Honour was in no way inappropriately constrained by the residual effect of s 32A(1) as she saw it to be at this later phase of sentencing.[46] It seems to me that her Honour clearly considered that the residual effect of s 32A(1) at this later phase was as a guide, but as no more than a guide, the force of which is very much subject to the discretion of the judge; in other words, it is a factor to be borne in mind, but it is only one factor of a number to be taken into account.
[46] Pursuant to s 32(5)(ab) of the Act the mandatory minimum non-parole period for murder must be 20 years and s32A(1) of the Act therefore indicates that 20 years must be considered the applicable non-parole period for a murder that is at the lower end of the range of the type of offending. Her Honour reduced the period from 20 years to a 12 years non-parole period in this case.
Conclusion as to correct approach to the fixing of a non-parole period of less than a minimum 80%
I consider that the content of s 32A(1) does continue to have a part, albeit a limited part, to play at the later phase of the fixing of the actual length of the non-parole period. This may be simply stated to be that: the legislative pronouncement that the non-parole period for an offence at the lower end of the range of objective seriousness should usually be a minimum of 80% of the head sentence is a relevant factor to be borne in mind, but it is only one factor amongst all the relevant factors and circumstances in relation to the offence and the offender, namely all of the same matters as a court normally considers when no prescribed minimum is set.
Finally, I should emphasise that although I have couched what I consider to be the correct approach in terms somewhat different to those adopted by Gray J, I emphasise that the two respective formulations will very rarely produce significantly different results in any given case.
As has been seen above, in my view the part played by s 32A(1) has its primary role of importance at the preliminary special reasons inquiry. If a given case has been able to pass through that stage, the range of factors militating in favour of the application will almost always increase because such factors are no longer limited to (but obviously still include) those which are characterised as special reasons. The result will be that while the legislative pronouncement must still be borne in mind as a factor, its weight is usually now significantly diluted because it is now being compared not just with the cumulative force of the special reasons but with the cumulative force of the special reasons together with all other matters, facts and circumstances militating in favour of the application to reduce the non-parole period below the 80% level.
It will be appreciated that it follows from the above analysis that I have the misfortune to disagree with some passages to be found in some other judgments, at least as a matter of emphasis. I do not find it necessary to further pursue these matters although for the sake of clarity, I should add that I specifically can not, with great respect, agree with Kourakis J in his following statement in R v Ironside:[47]
[181]However, the common law sentencing principle that like cases should be treated alike, and that material differences between cases should be reflected in the penalty, applies to ss 32(5)(ba) and 32A of the Act. It follows that the extent to which the non-parole period that is fixed pursuant to those sections falls below the mandatory non-parole period should be proportionate to the special reasons which enliven the discretion. A finding of special reasons does not mean that the mandatory minimum non-parole period can be ignored. Moreover, there must be a reasonable level of consistency in the non-parole periods fixed in those cases which attract a finding of special reasons. Differences in non-parole periods should reflect the degree of culpability of different offenders, and in particular the relative weight of the considerations which supported the finding that there were special reasons to fix a non-parole period below the mandatory minimum.
[47] (2009) 104 SASR 54 at 97.
As I have suggested above, the legislative pronouncement should be borne in mind and not be ignored. However, this does not mean, in my view, that the result should be that “the extent to which the non-parole period that is fixed pursuant to those sections falls below the mandatory non-parole period should be proportionate to the special reasons which enliven the discretion”. Once the substantive process of fixing the non-parole period is embarked upon, attention is to paid to all matters and not just those characterised as special reasons and, in a given case, the cumulative effect of the matters not characterised as special reasons may well be greater than the cumulative effect of the matters that are characterised as special reasons. As explained above, at this stage the legislative pronouncement remains a factor to be borne in mind, but it may be only one factor in the midst of a number of more powerful factors which may or may not be factors characterised as special reasons. I therefore disagree with the ideas of “proportionality” or “consistency” propounded in this passage because, apart from anything else, the infinite number of possible combinations of facts and their impact on the exercise of the broad sentencing discretion is, by definition, of high variability.
Summary of the correct approach to an offence subject to s 32A
In summary, and drawing the above matters together, I consider that the correct approach to the process of fixing a non-parole period of less than 80% of the head sentence for an offence subject to s 32A may be briefly expressed in the following way:
If the cumulative effect of special reasons falling within one or more of the matters referred to in ss 32A(3)(a)–(c) is such that the non- parole period can, and should, be reduced below 80% of the head sentence, the court will then fix such non-parole period as it thinks fit having regard to all factors ordinarily relevant to the fixing of a non-parole period, but, in exercising that broad discretion, it should bear in mind that one of the relevant factors to be taken into account is the legislative intention that the non-parole period for an offence at the lower end of the range of objective seriousness should usually be a minimum of 80% of the head sentence.
Special reasons in the present case
As stated above, the respondent attempted to plead guilty to manslaughter by offering to do so by formal letter prior to being committed for trial but the DPP rejected such offer.
It was the position taken by the DPP on sentencing, and during the argument of this application, that the respondent could have pleaded in front of the jury that he was “not guilty to murder but guilty to manslaughter” and that his formal written offer to do so in satisfaction of the Information did not come within the words of s 32A(2)(b): “if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea.”
I consider that the resolution of the precise question of whether such a situation may fall within s 32A(3)(b) may be less simple than might first be supposed and as I do not find it necessary to pursue that matter to finality in these proceedings, I will reserve my position.
However, there is one matter that I should address out of respect for the tentative view expressed by Anderson J that the respondent’s offer to plead guilty may not come within s 32A(3)(c) (the co-operation provision) because Parliament intended that only a plea (as distinct from an offer to plead) will come within s 32A(3)(b) and, accordingly, an offer to plead will also not be relevant under s 32A(3)(c).
With the greatest respect, I cannot accept the proposition or the reasoning. Section 32A(3)(c) specifically refers to co-operation “in the investigation or prosecution of that or any other offence”. In my view, it is quite plain that an early offer to plead to a charge of which an accused is later convicted is “co-operation in the prosecution” in a case where, as here, it subsequently transpires that the accused is convicted of no more than the charge as to which he offered to plead guilty. If it should be the case that the present circumstances do not come within s 32A(3)(b) (as to which I have reserved my opinion), it is my view that that is all the more reason why they do come within s 32A(3)(c). I can not discern any reason why the Parliament would not have so intended and, in fact, I consider that there are clear indications that Parliament did positively intend that s 32A(3)(c) should have broad application.
I have not been able to find any authority dealing with this precise matter in the context of the present statutory regime, but it is worth noting that general sentencing principles do require an allowance to be made for just such an attempt to plead to a lesser charge in circumstances where the accused is subsequently found guilty of only that lesser charge.
In R v Cardoso,[48] the NSW Court of Criminal Appeal specifically held that the fact that the accused had offered to plead guilty to manslaughter in the week preceding arraignment could constitute a factor in imposing a lesser sentence of imprisonment. Hidden J (with whom Greg James J agreed) stated:[49]
His Honour expressly took into account the applicant’s remorse but he made no allowance for his offer to plead guilty to manslaughter. Here, in my respectful view, his Honour fell into error. The applicant had offered to plead guilty to a lesser charge which could fairly be justified on the available evidence and which, in the event, the jury found to be the appropriate measure of his culpability. The Crown chose not to accept that offer, a matter which was beyond the applicant's control. If the offer had been accepted, the same result would have been achieved without the necessity of a trial.
It is not to the point that, that offer having been rejected, the applicant chose not to plead guilty to manslaughter in the presence of the jury and raised an issue at the trial which could have led to his outright acquittal. (As it happens, self-defence could now give rise to the alternative verdict of guilty of manslaughter because of subsequent amendments to the Crimes Act: see Div 3 of Pt 11 of the Act and, in particular, s 421.) A plea of guilty at that stage would not have been accepted by the Crown and the trial would have proceeded in any event.
[48] (2003) 137 A Crim R 535.
[49] R v Cardoso (2003) 137 A Crim R 535 at 540 [19]-[20].
His Honour then went on to emphasise that it would be unacceptable for the measure of leniency afforded to an accused for offering to plead guilty to depend on whether the Crown accepted that offer. His Honour stated:[50]
If the submission of the Crown prosecutor in this court were upheld, the measure of leniency afforded to an offender such as the applicant, prepared to plead guilty to a lesser charge fairly available on the evidence, would depend upon the Crown's attitude. This would be unacceptable.
[50] R v Cardoso (2003) 137 A Crim R 535 at 540 [21].
Similarly, in R v Marshall,[51] the accused was charged with two alternative counts of attempted murder and wounding with intent to cause grievous bodily harm. The day before trial, the applicant offered to plead guilty to unlawful wounding. This offer was declined but he was ultimately convicted only of that offence. The judge made no allowance for that intimation on sentence.
[51] [1995] 1 Qd R 673.
The Queensland Court of Appeal (Fitzgerald P and Pincus JA; Byrne J dissenting) held that the sentencing judge had erred in failing to take into account the pre-trial offer of the accused. Pincus JA stated:[52]
…it does not appear that the judge gave any credit for an offer which the applicant made to plead guilty to the offence of which he was ultimately convicted. When the matter was raised by counsel for the applicant below, there as a discussion at the end of which the judge said in effect that he could understand the Crown rejecting the offer to plead guilty to unlawful wounding. In his Honour’s remarks on sentence, which have an appearance of comprehensiveness, no reference is made to the offer to plead guilty. The inference should be drawn, in my opinion, that his Honour did not treat that offer as having any significance; the correctness of the inference is to some extent supported by the fact that the head sentence imposed was towards the top of the range.
[52] R v Marshall [1995] 1 Qd R 673 at 674.
Pincus JA then noted that under Queensland law, the applicant could only have pleaded guilty to unlawful wounding if the Crown had accepted it, there being no separate charge of “unlawful wounding” on the indictment. His Honour stated:[53]
Mr Callaghan for the respondent has directed our attention to s 598(1) of the Code; under that provision it would have been possible for the applicant to plead guilty to unlawful wounding, but only with the Crown’s consent, and that was not to be had. Byrne J has referred to the possibility of the applicant making formal admissions; had he done so, that might have strengthened the case for making an allowance in his favour; however, it does not appear that it would have made any real difference to the volume of evidence called.
[53] R v Marshall [1995] 1 Qd R 673 at 674.
His Honour further observed:[54]
That the Crown acted reasonably in refusing it did not, in my opinion, deprive the offer to plead guilty to the offence of which the applicant was ultimately convicted of all weight. The Crown rejected the offer, no doubt, because of its assessment of the prospects of success on one of the counts in the indictment: attempted unlawful killing and unlawful wounding with intent to do grievous bodily harm. But since the jury was not satisfied that either of those offences was committed, it is not clear to me how the reasonableness or otherwise of the Crown’s decision to attempt to prove one of those offences can affect the level of sentence. To put that more simply, I find it difficult to see why the applicant’s position should be worse than if the Crown had charged him with, and he had pleaded guilty to, unlawful wounding.
[54] R v Marshall [1995] 1 Qd R 673 at 674-675.
Granting permission to appeal would be futile because the resultant appeal would be dismissed
In addition to the various considerations referred to above which militate against a grant of permission to appeal, I consider that to grant permission would be futile because the resultant appeal would have insufficient prospects of success.
Without going into the degree of detail that would be usual if permission to appeal were granted, I consider that the foregoing discussion is sufficient to justify the following conclusions.
First, I consider that his Honour was correct in coming to his view on the preliminary special reasons inquiry that there was material satisfying the description of special reasons within s 32A and that that material was sufficiently weighty to justify a reduction below 80% of the head sentence. Such material included the respondent’s early attempt to plead guilty to the charge of which he was ultimately convicted and this constituted special reasons under s 32A(3)(c) as co-operation with the prosecution. This was correctly added to, and treated as cumulative with, the additional matters of co-operation with the police such as that in relation to the locating and recovery of parts of the gun as referred to by his Honour in the sentencing remarks. Accordingly, his Honour was therefore entitled to proceed to his ultimate task of fixing a non-parole period of less than 80%.
Second, in carrying out that ultimate task, his Honour was required to take into account, not only the special reasons, but also all of the circumstances ordinarily relevant to the fixing of a non-parole period that his Honour found to exist. His Honour was free to fix such non-parole period as he thought fit but, in exercising that broad discretion, was to bear in mind that one of the relevant factors to be taken into account is the legislative intention that the non-parole period for an offence at the lower end of the range of objective seriousness should usually be a minimum of 80% of the head sentence. In my view there were a number of matters, the cumulative effect of which justified a reduction of the degree that his Honour made and that this remained the case notwithstanding it being fully borne in mind that the non-parole period should in the usual case be a minimum of 80% of the head sentence.
Third, it has not been established that his Honour has adopted other than the correct approach or that he failed to bear in mind that last factor referred to above. His Honour has not positively misdirected himself and it has not been established that he failed to adopt the correct approach or otherwise erred as a matter of principle when exercising his discretion.
Finally, if it were to be thought that his Honour’s ultimate sentence was more lenient than another judge may have imposed, such consideration clearly does not per se give rise to an entitlement to permission to appeal; and nor does it, in the present circumstances, give rise to an inference of error of principle.[55]
Conclusion
For the above reasons, I would refuse permission to appeal. I would add that if permission to appeal were granted, I would be in favour of dismissing the resultant appeal.
- AGLC
- R v Jones [2010] SASCFC 58
- Case
- [2010] SASCFC 58
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge had correctly applied section 32A, particularly concerning the threshold for considering a reduction in the statutory minimum non-parole period and the weight to be given to the "lower end of the range of objective seriousness" and "special reasons." Specifically, the court had to determine if an offence must be at the lower end of objective seriousness to qualify for a reduction below the statutory minimum, and if so, how that interacted with the concept of "special reasons" as defined in the Act.
Anderson J reasoned that the matters listed in section 32A(3) are qualifying factors that enable a court to consider whether a "special reason" exists under section 32A(2)(b) to justify a reduction of the statutory minimum non-parole period. He held that a judge must bear the statutory minimum in mind when fixing a lower period after finding special reasons, and that the sentencing judge had erred in his approach. David J, however, took the view that once special reasons are found, there is no further fetter on the judge's discretion to set a shorter non-parole period, and that the sentencing judge had acted correctly. Peek J agreed with David J that once special reasons are found, a judge must consider all ordinary sentencing factors, but also noted that the legislative intention that the non-parole period should usually be eighty per cent of the head sentence for offences at the lower end of objective seriousness must be borne in mind.
Ultimately, the court allowed the appeal. Anderson J, with whom David J agreed, concluded that the sentencing judge had not properly directed himself on section 32A and that interference was required to maintain adequate standards of punishment. The court substituted a non-parole period of 7 years, 2 months, and 12 days, representing four-fifths of the head sentence, finding that the crime was not at the lower end of the range of objective seriousness and that the sentencing judge's approach lacked transparency.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: ANDERSON J, PEEK J
Mr Press submitted that the judge was in error if he found that the offending was at the lower end of the range of objective seriousness. To my mind, because of the combination of his background use and knowledge of guns and the obviously dangerous state of this gun, when the respondent pointed the gun at the deceased in the circumstances earlier described it could not be said to be at the lower end of the range of objective seriousness.Consideration of s 32A(i) Applicant’s submissions Mr Press referred to the decisions of this Court in R v Ironside [2009] SASC 151, R v Barnett [2009] SASC 332 and R v Harkin [2010] SASCFC 39. He submitted that the decisions of various members of the court in those matters illustrated that the four-fifths benchmark cannot be ignored at any stage of the sentencing process in fixing the non-parole period. He relied on statements made by Doyle CJ in Ironside, Vanstone J in Barnett, Kourakis J in both Ironside and Barnett and Kelly J and I in Harkin. He submitted that each of those judges had been consistent in stating that the considerations of sentencing pursuant to s 32A should take place around and mindful of the benchmark set by Parliament, namely in this matter, four-fifths of the head sentence for the non-parole period. He pointed out that Gray J in Ironside was also consistent in relation to the use of the benchmark but that His Honour had different views in relation to the ultimate exercise of the discretion. Mr Press submitted that the benchmark of four-fifths was relevant to all the questions which had to be asked in fixing a non-parole period. They included whether the non-parole period should be longer than four-fifths, whether the non-parole period should be shorter than four-fifths, whether it should be exactly four-fifths, whether there were special reasons, and finally relevant to a situation of what to do if and when special reasons are found. Mr Press submitted that the sentencing judge could not have had regard to the benchmark when he actually fixed the non-parole period. The period fixed is just in excess of half the head sentence. Mr Press was asked from the bench whether, in the event that the offending was not at the lower end of the scale of objective seriousness, special reasons could still be found and result in a reduction from the four-fifths period prescribed. In other words, is it a pre-condition to reducing the non-parole period below four-fifths to have a finding that the crime fits at the lower end of the range of objective seriousness? Mr Press answered that question by way of an example which I will repeat because in my view it indicates that some of the earlier statements made by the judges in the cases referred to above probably did not consider this possibility. In giving his example Mr Press emphasised that the court would hardly ever be able to find special reasons where the crime was not at the lower end of the range of objective seriousness. His example was a person coming forward ten years after a murder, which is not at the lower end of the range of objective seriousness, which murder has been unsolved for those ten years. The offender comes forward and informs the authorities that he committed the murder, co-operates with the police, shows them where the body is but in addition adds that he committed the crime in conjunction with someone else and agrees to provide Crown evidence to inculpate the co-accused.