R v Jones

Case [2010] SASCFC 58

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…

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R v Jones [2010] SASCFC 58
Case
[2010] SASCFC 58
Decision Date

CaseChat Overview and Summary

This case concerned a prosecution appeal against a sentence imposed on the respondent for manslaughter. The central dispute revolved around the proper application of section 32A of the Criminal Law (Sentencing) Act 1988 (SA), which prescribes a statutory minimum non-parole period. The sentencing judge had imposed a non-parole period significantly lower than the statutory minimum, and the prosecution argued this was an error. The appeal was heard by Anderson, David, and Peek JJ.

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

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J PEEK J
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][1] R v Osenkowski (1982) 30 SASR 212.[2] R v Drewett (1983) 35 SASR 344.

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.