R v Knott - [2007] SASC 74

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 for a term of imprisonment of six years and three months. A non-parole period of two years and three months was fixed. In arriving at the head sentence of six years and three months, account was taken of the nine months already spent in custody. The Judge declined to suspend the sentence.
The Crown, in support of the application for leave, submitted that errors of principle had occurred, that there had been a failure to maintain adequate standards of punishment and that the sentence was so low as to shake public confidence in the administration of justice.
The Offending
Shortly after 10.00pm on 12 November 1998, the respondent “smashed his way” through the dining room window of a home at Mount Osmond. A husband and wife, the victims, were at home eating their evening meal. The respondent was wearing a stocking mask and was armed with a hammer and a knife. He approached the victims in a threatening manner, holding the hammer level with his head, and demanded they remain in the house. He then ordered that they lie down. He demanded money and a purse. He was handed about $300 in cash and a purse containing money.
The respondent then asked for any credit cards held by the victims. The female victim advised the respondent that she had a Visa card. He demanded that she find both the PIN number and the card. She went to the kitchen, located the items and provided them to the respondent.
In the course of the armed robberies, the respondent ordered the female victim to tie her husband’s hands and feet with rope, which she did. The respondent bound up the female victim. The respondent then moved the victims to the spare room. He carried the female victim to the room. The male victim had to slide there.
The respondent kept the victims imprisoned in their home for a period of seven hours. During this time the respondent moved about the house. He appeared to have left the house for short periods before again returning. The victims remained bound except for one short period when the female victim was permitted to go to the toilet and the male victim was allowed to walk around in a spare room. They were both rebound immediately after their brief respite.
At approximately 5:00am, the respondent entered the spare room where he had falsely imprisoned his victims. Without warning the respondent struck the male victim to the temple with the hammer. He then struck his female victim in the head. He then repeatedly struck both victims to their head and body with the hammer. At this time, both were lying facedown on the floor with their hands bound behind their backs. At some point the male victim was stabbed to the chest.
The male victim managed to loosen his ties. He struggled with the respondent. The respondent kicked the male victim and then retreated to the doorway. The male victim seized the hammer and smashed a window and told his wife to flee. She did so. The respondent tried to get back into the room. The male victim leaned against the door in an attempt to keep it closed. The door partially opened every time the respondent pressed hard against it from the other side. The male victim waited for his wife to be clear of the window and then opened the door. The respondent was no longer there. The male victim then left through the front door and alerted neighbours.
The male victim sustained a depressed skull fracture, a head laceration, a stab wound to the chest, a laceration to his right palm and a laceration to his right index finger. He spent five nights in hospital. He has been left with scars on his forehead.
The female victim sustained a compound depressed skull fracture, a small meningeal tear, an arm fractured in two places, cuts to her feet and bruising to her legs. She was hospitalised for seven days. She required seven months of physiotherapy to regain the use of her arm. She underwent further surgery eight months after the offences to place a protective titanium mesh over a vulnerable portion of her brain.
Both victims were severely traumatised. They have suffered and continue to suffer from ongoing psychological damage. Both feel very insecure. They will be left with mental scars for the balance of their lives.
The Respondent’s Antecedents
The respondent was born on 6 November 1947. He was aged 51 years at the time of the offending and 58 years when sentenced. A review of his criminal antecedents discloses many dishonesty offences between 1969 and 1978, including a number of break and enter offences. He was imprisoned on a number of occasions. For the ensuing twenty years the respondent had a clear criminal record until the commission of the offences the subject of this application.
Following the subject offending, the respondent committed three further separate offences - between December 1998 and February 1999 he stole a rifle, ammunition and hacksaw from a shed - on 4 February 1999, he committed the offence of armed robbery of a golf club using a sawn off rifle. The victims were a 13-year-old boy and his mother - on 11 April 1999, he broke and entered the same golf club and stole alcohol - on 14 April 1999, he committed the offence of armed robbery at the same golf club with a loaded firearm. The same 13-year-old boy and his father and the club professional were the victims. In the course of apprehending the accused, the firearm discharged one round.
On 8 September 1999, the respondent on his plea of guilty to these offences, was sentenced to six years’ imprisonment with a three-year non-parole period backdated to 15 April 1999. The respondent served his non-parole period and was released on parole in April 2002.
In or about June 2002, police took a sample of his DNA. In October 2002 the respondent was spoken to by police in relation to the discovery of DNA matching his DNA at the scene of the present offending. This led to his arrest and to the charges with respect to the present offences.
The sentencing Judge summarised the respondent’s personal antecedents in the following terms:
For the purpose of sentencing, I am satisfied as to the following facts: you are 58 years of age. You grew up on a fruit block in the Riverina area in Victoria. You left school at age 14. You worked as an apprentice printer. After six months, you began travelling and working in the far north of Queensland.
In your early 20s and until about 1977, you were prone to excessive drinking. During this period you were committing offences.
You went to work in the Riverland where you met your future wife who had a six-year-old son. For the next 20 years you were a good family man, hardworking and loyal to your employer. You have been described as a man who, prior to the commission of these offences, had been a gentle, quietly spoken laconic man, devoted to work and his family and who was a generous contributor to the community; you coached an underage football team.
One day in October 1998, you walked off the fruit block near Loxton where you had worked for the previous 20 years. You took almost nothing with you. You told no-one of your intention to leave, not your wife and not your employer. You began to live rough on the streets of Adelaide until your arrest on 14 April 1999 during the commission of an armed robbery.
You left behind everything; your family and all of your worldly possessions acquired over the preceding 20 years. You left home without advising the owner of the property, Mr James-Martin. You cannot identify what was going through your mind when you left. The possible explanations for you having done so, are discussed in Mr Bell’s psychological report to which I have had regard.
It appears that there may have been a number of factors which culminated in your departure. Your family had taken on the care of your 15-year-old nephew who sought refuge away from an abusive home.
Some years before October 1998, you had had some success at the casino. Your winnings were to be a nest egg for you and your wife. However, gradually this was whittled away for reasons for which you are not morally blameworthy.
You had increased your consumption of alcohol, and financial and work pressures increased. A new owner took over the property. You needed to work longer hours. In addition, because the owner was absent at relevant times, you were paying the wages of casual workers from your own funds. An opportunity arose for you to buy the property from the owner of the property, Mr James-Martin. Because you realised that sufficient funds were no longer available, you could not bring yourself to tell your wife. However, she learnt about the opportunity from the owners. She was devastated and disappointed in you. This added to the strain on your relationship with your wife, which was mounting as a result of your excessive drinking.
The prosecution submitted that the delay enabled you to take positive steps to rehabilitate yourself and has enabled the court to have information about the progress of your rehabilitation, both during the period that you served whilst on parole in relation to the sentence imposed by Judge Muecke, and since the completion of that parole period.
...
You pleaded guilty solely upon an acceptance of the accuracy of DNA evidence following a quite proper scrutinisation by your legal advisers in all the circumstances. It is eight years since the commission of the offences. You have served a prison sentence for other offences committed during this period of your life. The delay has enabled the court to consider the progress of your rehabilitation. Your efforts towards your rehabilitation show that the prison term which you have served, appears to have personally deterred you. After you were released on parole in April 2002, you returned to live with your family and you resumed working for a period of six months. You were arrested in October 2002, as I have said, and you remained in custody until you were released on bail in June 2003.
Once again, you returned to live with your family, resumed work and resumed your role as a husband, father and a contributing member of the community. You have not consumed alcohol since your arrest in 1999, as I have said.
Imprisonment will test your reconciliation with your wife and perhaps your efforts to date at your own rehabilitation. It will mean that upon your release, your rehabilitation will have to begin again, I refer in this context for example, to the Queen v Powles. I have received a reference from your current employer who states that knowing you are facing a return to prison, he is willing to re-employ you upon your release. Your wife remains supportive. You are able to return to your community.
This summary was accepted as accurate by both parties on the hearing of this application.
The Approach to a Crown Appeal
The principles relevant to Crown appeals against sentence are well established. In Nemer,[1] Doyle CJ summarised those principles as follows:[2]
The Director's right to seek leave to appeal against sentence, and the court's power to interfere, are found in s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA). Similar provisions exist in other States.
The High Court has 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 satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far 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 Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by 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].
In Osenkowski,[3] King CJ observed that the proper role for prosecution appeals is to enable courts to establish and maintain adequate standards of punishment for crime;[4] to correct the idiosyncratic views of individual judicial officers as to particular crimes or types of crime;[5] and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[6]
[3] R v Osenkowski (1982) 30 SASR 212.
[4] R v Osenkowski (1982) 30 SASR 212 at 212-13.
[5] R v Osenkowski (1982) 30 SASR 212 at 212-13.
[6] R v Osenkowski (1982) 30 SASR 212 at 212-13.
The discretion of the sentencing Judge in fixing a sentence is not to be interfered with lightly. As King CJ noted in Osenkowski: [7]
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.
[7] R v Osenkowski (1982) 30 SASR 212 at 212-213.
Accordingly, a Crown appeal against suspension of sentence should be approached with great care, and the “rare and exceptional” test should be rigorously applied. Furthermore, an error must be identified before a sentence may be interfered with. As Kirby J explained in Dinsdale:[8]
As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight 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).
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
Counsel for the Crown submitted that the above method of constructing the sentence disclosed errors of sentencing principle. Counsel drew attention to the following observations of the sentencing Judge:
Following the commission of these offences in November 1998, you committed a number of additional offences, including two armed robberies. On 8 September 1999, His Honour Judge Muecke sentenced you for this subsequent offending. In relation to the two armed robberies, you were sentenced to a term of imprisonment which His Honour fixed at six years. His Honour imposed a non-parole period of three years imprisonment.
In relation to the two additional offences which were committed after this offending, namely offences of larceny and break enter and larceny, these offences were committed in December 1998 and April 1999. His Honour imposed a sentence of 12 months imprisonment which was to be served concurrently with the sentences imposed in respect of the two armed robbery offences.
...
I have had regard to the fact that you have served a sentence for offences which were committed subsequently. Taking into account your circumstances between November 1998 and April 1999 and the offences committed by you during that period, I am of the view that these offences represented the commencement of a course of criminal conduct which concluded on your arrest in April 1999.
In this respect I refer to such cases as Perugini and Mill’s case. Therefore it is necessary for me to have regard to the sentence imposed by Judge Muecke for the subsequent offences when I come to sentence you for this offending.
I bear in mind that Judge Muecke’s sentence was imposed upon the basis that the offences for which he sentenced you, were the first offences committed by you in 20 years, according to the information before him.
...
I consider it is appropriate to sentence you on the basis that if you had been sentenced at the same time that you were sentenced by His Honour Judge Muecke for the later offences, some overlap of this sentence would have been appropriate.
...
If sentencing you at the time that you were sentenced by His Honour Judge Muecke, I would have taken the view that this offending warranted a sentence of imprisonment of 11 years. I would have reduced that sentence on account of your pleas of guilty, your willingness to assist the administration of justice and your remorse, to eight years, six months imprisonment.
As I have said, if sentencing at that time, I would have considered that partial accumulation with Judge Muecke’s sentence, would have enabled regard to be had to this offending occurring at the beginning of a period of offending in respect of which the later offences were dealt with by Judge Muecke and to the totality principle.
It was submitted by the Crown that the sentencing Judge was in error to have determined a notional sentence of eleven years by reference to the sentence the respondent would have received, if he had been sentenced in 1999 – that is at the same time as Judge Muecke sentenced - and then to make adjustments to that notional sentence. It was said that this introduced a “two-tier” approach to the sentencing process. Attention was drawn to the observations of the High Court in Markarian. [10]
[10] Markarianv R (2005) 215 ALR 213.
Counsel for the Crown accepted that the 1999 sentence was a relevant circumstance to be weighed when determining the appropriate sentence for the subject offending. However, it was said not to be a circumstance that called for a separate reduction from an appropriate sentence. It was a circumstance, it was argued, that should be taken into account as a personal circumstance of the respondent.
The sentencing Judge referred to the High Court decision of Mills.[11] That was a case where it was not possible for a defendant to be sentenced in respect of three offences of a like kind that were committed within a short time because they were committed in different States. It was only on extradition from one of the States after the serving of eight years that 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.
In my view the correct approach to be taken in the present case was identified by Doyle CJ in Bruce v Hollick:[12]
[I]t is proper to make some allowance, in a manner in which one cannot be precise, for the fact that a term of imprisonment has already been served for offences that are part of the same pattern of conduct. On the other hand, one has to be careful not to simply take a “bulk discount” approach. People who commit multiple offences cannot assume that the sentences imposed will be less than each offence warrants in isolation. 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.
The sentencing Judge erred in the application of sentencing principle. The respondent was to be sentenced as at November 2006 with respect to the present offending. It was relevant for the Judge to have regard to events that had occurred since the offending. Those events included the sentence imposed for the 1999 offending. In particular rehabilitation following release on parole was a relevant matter. The approach taken by the Judge involved the fixing of a notional sentence as though the respondent was being sentenced in 1999 and then making adjustments to that notional sentence. As earlier observed that approach was in error.
Manifestly Inadequate
The sentence imposed was manifestly inadequate having regard to the nature and gravity of the respondent’s criminal offending. A starting sentence of imprisonment of eleven years before making a reduction for the pleas of guilty, remorse, contrition and the facilitation of the course of justice, would have been an appropriate sentence for the two armed robbery offences. It is to be recalled that the victims were attacked in their home, threatened and robbed. The circumstances of aggravation surrounding the offences of armed robbery were grave. However, there was much more.
The brutal attack on the victims during their forcible detention of seven hours also called for heavy sentences. These were grave crimes. There were circumstances of aggravation. The victims were bound, lying face down on the floor and defenceless when struck with considerable force to the head by a hammer. In addition the male victim was stabbed. This was not conduct occurring on the spur of the moment. The respondent had many hours to consider the plight of his victims and his proposed attack. The victims offered no resistance. They were compliant with his directions. His brutal attack was both cowardly and callous. He struck both victims intending to cause each of them grievous bodily harm. The offences of causing grievous bodily harm with intent to cause grievous bodily harm, called for a greater sentence than that imposed by the sentencing Judge in respect of the overall criminal conduct.
The false imprisonment of the victims in their own home was serious criminal conduct. There can be little doubt that this aspect of the victims’ ordeal has been a significant contributor to their ongoing psychological harm, their feelings of insecurity and terror, and their inability to put these events behind them. Offending of this nature called for a substantial sentence.
It was not inappropriate to utilise the provisions of section 18A of the Criminal Law (Sentencing) Act. However, in arriving at the one sentence to be imposed pursuant to that section, it was important for the sentencing Judge to give separate consideration to each of the offences. Although the offences were committed as part of an ongoing course of conduct, there was a separateness about the offending that called for a significant degree of accumulation of individual notional sentences. It was necessary for the Judge to assess the overall criminal culpability of the respondent.
The review of the circumstances of the entire offending, the criminal and personal antecedents of the respondent, the circumstances of aggravation that have been identified earlier including the severe physical and mental impact on the victims, leaves me in no doubt that the sentence imposed was manifestly inadequate and one that would shock the public conscience.
I am in no doubt that the inadequacy of the sentence did shock the public conscience. This is a case in which there are compelling reasons for this Court to grant the Crown leave to appeal and to allow the appeal.
In all the circumstances, I would impose the one penalty of twelve years and nine months’ imprisonment. In arriving at that one sentence, I have reflected on the overall course of criminal conduct when determining the sentence to be imposed. I have made a reduction of four years and six months on account of the pleas of guilty, contrition and remorse. I have given effect to the principle that because of the respondent’s exposure to double jeopardy, a sentence at the lower end of the appropriate range should be imposed. I have given consideration to the totality principle. I have allowed nine months on account of time spent in custody.
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.
DAVID J. 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.