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R v Knott

R v Knott

Case [2007] SASC 74 8 March 2007

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KNOTT
[2007] SASC 74
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)
8 March 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - FALSE IMPRISONMENT AND UNLAWFUL DETENTION
Application by DPP for leave to appeal against sentence - the respondent on his plea of guilty was sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to six years and three months imprisonment with a non-parole period of two years and three months for the offences of two counts of armed robbery, two counts of unlawful imprisonment and two counts of causing grievous bodily harm with intent to cause grievous bodily harm - DPP sought leave to appeal on the ground that errors of sentencing principle had occurred and that the sentence was manifestly inadequate - consideration of the principles relevant to Crown appeals - consideration of sentencing principles - Held (unanimously) application for leave to appeal granted - respondent re-sentenced to a term of twelve years and nine months imprisonment with a non-parole period of eight years.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; Dinsdale v R (2000) 202 CLR 321; Markarian v R (2005) 215 ALR 213; Mills v The Queen (1998) 166 CLR 59; Bruce v Hollick (1998) 71 SASR 536, considered.

R v KNOTT
[2007] SASC 74
Court of Criminal Appeal: Doyle CJ, Gray and David JJ

DOYLE CJ: I agree with the orders proposed by Gray J. There is nothing that I wish to add to his reasons.
GRAY J:
This is a Crown application for leave to appeal against sentence.
The respondent was convicted on his plea of two counts of armed robbery, two counts of unlawful imprisonment and two counts of causing grievous bodily harm with intent to cause grievous bodily harm. The maximum penalty for the offence of armed robbery is imprisonment for life. False imprisonment is a common law offence and the penalty is at large. The maximum penalty for the offence of causing grievous bodily harm with intent to cause grievous bodily harm is life imprisonment.
On 2 November 2006, the respondent was sentenced by a Judge of the District Court, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), to the one sentence in respect of all offending. That sentence provided…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Knott

Details

AGLC: R v Knott [2007] SASC 74
Case: [2007] SASC 74
Decision Date: 8 March 2007

CaseChat Overview and Summary

In the matter of R v Knott, the Director of Public Prosecutions (DPP) sought leave to appeal against the sentence imposed on the respondent, Knott, following his plea of guilty to multiple serious offences. The respondent was sentenced to six years and three months imprisonment, with a non-parole period of two years and three months, for two counts of armed robbery, two counts of unlawful imprisonment, and two counts of causing grievous bodily harm with intent. The DPP argued that errors of sentencing principle had occurred, rendering the sentence manifestly inadequate.

The primary legal issue before the court was whether the sentence imposed by the District Court was an error of principle, warranting appellate intervention. The court considered the principles relevant to Crown appeals against sentence, particularly in cases where the sentence is significantly below the appropriate range for the offence committed. The court also examined the principles of sentencing, focusing on the nature and circumstances of the offences, the culpability of the offender, and the need for deterrence and denunciation.

The court granted the DPP's application for leave to appeal and allowed the appeal, setting aside the original sentence. The court found that the original sentence was manifestly inadequate and did not adequately reflect the seriousness of the offences or serve the purposes of punishment, deterrence, and denunciation. The court re-sentenced the respondent to a term of twelve years and nine months imprisonment, with a non-parole period of eight years, taking into account the respondent's rehabilitation efforts and prospects for rehabilitation. The new sentence was deemed appropriate to reflect the gravity of the offences and to meet the sentencing objectives.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J

In determining a non-parole period, I have had particular regard to the significant steps taken by the respondent toward his rehabilitation following his being sentenced by the District Court for the 1999 offending. There appears to be good prospects for rehabilitation. I would fix a non-parole period of eight years. Conclusion I would grant leave to appeal. I would allow the appeal. I would set aside the sentence imposed by the District Court. I would sentence the respondent to a term of imprisonment of twelve years and nine months. I would fix a non-parole period of eight years. The sentence should commence on 2 November 2006. I would grant leave to appeal. I would allow the appeal. I agree with the sentence imposed by Gray J for the reasons that he has given.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

Such error may be inferred from a result that is manifestly unreasonable or plainly wrong. An appellate court may interfere to correct a sentence where it is so far below the appropriate range of sentence that it reflects an error of principle, or would “shock the public conscience” were it allowed to stand.[9] [9] R v Nemer (2003) 87 SASR 168 at 172 (Doyle CJ); R v Osenkowski (1982) 30 SASR 212 at 213. Consideration of the Application The respondent’s offending was very grave. There are a number of aggravating circumstances that should be catalogued. They include the following:-the victims were attacked in their own home;-the respondent entered the home armed with both a hammer and a knife - both weapons were later used to inflict injury;-the victims were subjected to a protracted and sustained ordeal including being bound and held hostage for nearly seven hours;-the offending included elements of extreme violence leading to serious physical injury, ongoing physical and mental disabilities and the traumatisation of both victims;-the respondent’s violence was gratuitous. It was committed while the victims were tied, face down on the floor, and defenceless;-the respondent’s conduct was cruel and callous. This was evidenced by the brutality of his final assaults on the victims;-the respondent only ceased his attack when he fought with one of the victims. After the respondent had been forced from the room, he attempted to regain entry. It is also to be borne in mind that the respondent’s conduct was part of an ongoing course of conduct extending over seven hours. The respondent’s conduct was not committed on the spur of the moment. The offences of causing grievous bodily harm with intent to cause grievous bodily harm were not committed until almost seven hours after the armed robberies had taken place. During this time the victims had been forcibly imprisoned. These circumstances may be viewed as an aggravating feature of the respondent’s criminal conduct. There were no mitigating features to the respondent’s offending. There was no evidence that the respondent was unable to fully understand the nature of the offences being committed. It is noteworthy that the respondent told his victims at the time of the offences “if I get caught for this I’ll probably get 20 years”. The personal circumstances of the respondent offered little by way of mitigation. There was no psychiatric or psychological illness or other to reduce his moral culpability. The circumstances in which he left the Riverland appeared to stem from problems associated with gambling and alcohol. There was nothing in those circumstances that provided any excuse for his criminal conduct. The sentencing Judge constructed the sentence by selecting a notional starting point of eleven years’ imprisonment. This notional term was reduced by two and half years on account of the pleas of guilty, the respondent’s remorse and his willingness to facilitate the course of justice. A further reduction of one and a half years was made on account of the application of the totality principle. This reduction was justified on the basis that the offences formed part of an ongoing course of offending that spanned a period of five months. The sentence of seven years was then reduced by a further nine months on account of the time spent in custody. This resulted in a total head sentence of six years and three months. The Judge found reasons to be merciful and fixed a non-parole period at two years and three months. Having regard to the time spent in custody, the effective head sentence imposed was seven years. Error of Sentencing Principle

Actions

Citations

R v Knott [2007] SASC 74

Most Recent Citation

R v CCT [2021] QCA 278

Cases Citing This Decision

MB v Masani [2024] NTSC 71
Citation 1 (Para 71)

…[4] Sayer at [71], citing The Queen v Knott (2007) 169 A Crim R 291 at [35] per Gray J (Doyle CJ and David J agreeing). At [76], the Court distinguished Mill v The Queen (1988) 166 CLR 59, in which the offender was treated as if he had been sentenced for all offending at the same time, because that case involved the deferm…
R v CCT [2021] QCA 278
Citation 2

…2001] QCA 187, cited R v Knott (2007) 169 A Crim R 291; [2007] SASC 74, cited R v Luke [1987] QSCCCA 9, cited R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381, cited R v Munday (1984) 14 A Crim R 456, cited R v Oliver [2020] QCA 76, cited R v Peter; R v Anau; R v Ingui; R v Banu (2020) 286 A Crim R 372; [2020]…
R v Smart [2018] SASCFC 123
Citation 3 (Para 5)

…t for rape; and, in respect of false imprisonment, the maximum penalty is at large.[43] [43] R v Walkuski [2010] SASC 146 at [15] and [82]; R v Knott [2007] SASC 74 at [3], (2007) 169 A Crim R 291 at 292.…
Wu v R [2011] NSWCCA 102
Citation 4 (Para 18)

…R v Knott [2007] SASC 74; (2007) 169 A Crim R 291 was a Crown appeal. The offender was sentenced in November 2006 for offences of armed robbery, unlawful imprisonment and causing grievous bodily harm arising from a home invasion in November 1998. After the home invasion he had committed other offences (armed robb…
Police v Hatty [2007] SASC 180
Citation 5 (Para 17)

…be approached with great care, and the "rare and exceptional" test should be rigorously applied.[9] [9] R v Hicks ( 1987) 45 SASR 270, 273; R v Knott [2007] SASC 74, [23]. Error of sentencing principle…

See all citing cases →

Cases Cited

Markarian v The Queen [2005] HCA 25
Citation 1 (Para 6)

…“two-tier” approach to the sentencing process. Attention was drawn to the observations of the High Court in Markarian . [10] [10] Markarian v R (2005) 215 ALR 213.…
R v Osenkowski [2005] SASC 142
Citation 2 (Para 20)

…r below the appropriate range of sentence that the sentence reflects an error of principle or would "shock the public conscience": see R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; Everett (at 300). Another way of expressing this point is to say that the court should not grant leave to appeal to the Direc…
R v Nemer [2003] SASC 375
Citation 3 (Para 20)

…the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion. [1] R v Nemer (2003) 87 SASR 168. [2] R v Nemer (2003) 87 SASR 168 at [22]-[24].…
Dinsdale v The Queen [2000] HCA 54
Citation 4 (Para 23)

…t to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts. [8] Dinsdale v R (2000) 202 CLR 321 at 339-340 (footnote omitted).…
Everett v the Queen [1994] HCA 49
Citation 5 (Para 20)

…determined that the court should grant leave to the Director to appeal against sentence "only in the rare and exceptional case": Everett v The Queen (1994) 181 CLR 295. The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satis…
Mill v The Queen [1988] HCA 70
Citation 6 (Para 8)

…d be sentenced in the other State in respect of the remaining offence. That is a different circumstance from the present case. [11] Mills v The Queen (1998) 166 CLR 59 at 66.…
Mills v The Queen [1986] HCA 71
Citation 7 (Para 8)

…the defendant could be sentenced in the other State in respect of the remaining offence. That is a different circumstance from the present case. [11] Mills v The Queen (1998) 166 CLR 59 at 66.…
SASR 304, citing R v Bruce and Hollick [1998] SASC 6831
Citation 8 (Para 9)

…on. It is only when the combined effect of the sentences is more than is warranted that any question of reduction can arise. [12] Bruce v Hollick (1998) 71 SASR 536 at 541.…

Legislation Cited

Criminal Law (Sentencing) Act 1988 (SA) 18A
2 mentions (from Para 4)
Criminal Law Consolidation Act 1935 (SA)
1 mention (from Para 20)