R v Lane

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v LANE
[2011] SASCFC 101
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice David)
6 September 2011
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - SENTENCE
Following a trial the appellant was sentenced in the District Court to imprisonment for twelve years with a non-parole period of eight years for the offence of aggravated criminal trespass in a place of residence - jury acquitted appellant of a charge of aggravated recklessly causing harm - both charges arose from an incident in which the appellant, armed with a jemmy bar and knife, broke into a house before being chased out by the home-owner - whilst trying to flee he was tackled by a neighbour who was wounded in the ensuing struggle - the sentencing judge took into account the injury suffered by the neighbour in the incident giving rise to the charge on which the appellant was acquitted - whether sentencing judge erred in fact when summarising appellant's antecedents - whether judge erred in taking into account the injury to the neighbour - whether sentence was manifestly excessive.
Held: appeal allowed - the judge did not make the alleged factual error concerning the appellant's antecedents - if any error was made it was favourable to the appellant - whether a consequence of an offence may be taken into account as a circumstance of the offending is a matter of degree - in the present case a number of factors indicated that there was some separation between the injury and the conduct comprising the offence - further, the injury to the neighbour was the subject of the charge on which the appellant had been acquitted - the effect of the acquittal was not to be compromised - the judge had erred in taking the injury into account - unnecessary to decide whether sentence was manifestly excessive - appellant re-sentenced to ten years of imprisonment with non-parole period of seven years.
Criminal Law Consolidation Act 1935 (SA) s 170(1), s 20(3), s 23(3); Criminal Law (Sentencing) Act 1988 (SA) s 10(1), referred to.
R v Austin (1985) 121 LSJS 181; R v Teremoana (1990) 54 SASR 30, applied.
R v Delphin (2001) 79 SASR 429; R v De Simoni (1981) 147 CLR 383, considered.

R v LANE
[2011] SASCFC 101
Court of Criminal Appeal: Doyle CJ, White and David JJ

DOYLE CJ: I agree with the orders proposed by White J and with his reasons. There is nothing that I wish to add.
WHITE J. Following a jury verdict, Mr Lane was sentenced in the District Court for the offence of aggravated serious criminal trespass in a place of residence with the intention of committing a theft.[1] The offence was committed on 14 April 2010.
[1] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 170(1).
The Judge imposed a sentence of imprisonment for 12 years with a non‑parole period of eight years and directed that both be taken to have commenced on 2 May 2010, being the date upon which Mr Lane was taken into custody.
Mr Lane appeals against that sentence. Counsel for Mr Lane accepted that the offending was serious but contended nevertheless that both the head sentence and the non‑parole period are manifestly excessive. Counsel also contended that the Judge made two errors in his approach to sentencing.
Mr Lane’s Personal Circumstances
Mr Lane is now 35 years of age. He was born and educated in Adelaide but left school at aged 15 after an interrupted schooling. His upbringing was difficult, following the separation of his parents when he was 18 months old. Mr Lane had virtually no contact thereafter with his father. He is now single having separated from his alleged co‑offender, with whom he had fathered a child born in January 2010.
For much of his adult life, Mr Lane has used illicit drugs. The Judge was told that that use increased following the death in a road accident in early 2000 of his then partner and their son.
Mr Lane’s bleak criminal history commenced when he was 13 years old. He had numerous appearances in the Youth Court, many of which were for break and enter and dishonesty offences. As a youth he was sentenced on three separate occasions to periods of detention.
As an adult, Mr Lane has had 11 convictions for offences of trespass or attempted trespass, albeit mostly of a non-aggravated kind in non‑residential premises; three convictions for being unlawfully on premises; six convictions for offences of larceny and one conviction for possession of housebreaking equipment at night. In addition, he has numerous other convictions for offences not involving dishonesty.
In the period of 10 years before being sentenced on 15 April 2011, Mr Lane had been sentenced to imprisonment on four separate occasions. The aggregate of the head sentences imposed on these occasions was nine years and four months.
The sentencing Judge was told that much of Mr Lane’s criminal activity was directed to finding funds with which to meet his drug dependency, initially cannabis and more latterly, amphetamines.
Mr Lane’s employment, when he has had it, has been of a labouring kind.
The Offending on 14 April 2010
In company with another, Mr Lane went to a house at Paralowie at about 12.30 am. The house was occupied by Mr Wimpenny and a number of children, several of whom were asleep. Using an object, which some witnesses described as a crowbar (but which may well have been a jemmy bar), and wearing a balaclava, Mr Lane forced his entry into the house by smashing the glass in a door at the rear. He was confronted by Mr Wimpenny and left the house. Mr Wimpenny then sooled his dog onto Mr Lane. The dog attacked and bit Mr Lane, which he attempted to avoid by re‑entering the house. He then effected his escape by leaving the house through the front door.
In the meantime, two of the children had roused a neighbour, Mr Norris. First he chased the co‑offender before returning as Mr Lane was exiting the front door. He tackled Mr Lane and the two men fell to the ground either in the front yard of the house, or on the adjacent footpath. While they were grappling each other, Mr Norris suffered a knife wound. It is evident that that wound was caused by Mr Lane. Mr Lane then made good his escape but was subsequently arrested.
Mr Lane’s offence was the aggravated form of serious criminal trespass in a place of residence because he knew there were people present in the house; because he committed the offence in company with another; and because he used an offensive weapon.
In addition to the trespass offence, Mr Lane was charged with two other offences. The first was an aggravated assault.[2] The prosecution alleged that Mr Lane had threatened to use the jemmy bar on one of the children. The jury could not reach a verdict on that count and subsequently the prosecution told the Judge that the Director would not be pursuing that charge.
[2] CLCA s 20(3).
The third charge was that of aggravated recklessly causing serious harm.[3] The prosecution relied on the stabbing of Mr Norris for this charge. The jury acquitted Mr Lane of this charge. The verdict is explicable on the basis that the jury was not satisfied beyond reasonable doubt that Mr Lane had the necessary mental element at the time of the stabbing.
[3] CLCA s 23(3).
The wound to Mr Norris required major surgery and resulted in him being off work for some ten weeks. Mr Norris has also been left with significant physical and psychological consequences from the wound.
Mr Lane’s offence of aggravated serious criminal trespass was plainly very serious. It involved the forced entry late at night into an occupied family home in frightening circumstances. The Victim Impact Statements of the occupants reflect the terrifying impact of Mr Lane’s conduct on Mr Wimpenny and his children. Had it not been for the intervention of the dog, the consequences of Mr Lane’s conduct may have been much more serious.
Mr Lane’s offence was also aggravated because its commission was a breach of a bond to be of good behaviour. Mr Lane had entered into that bond some four months previously at the Elizabeth Magistrates Court following his pleas to offences committed on 17 May 2009. The bond required him to be of good behaviour for 12 months and to come up for sentencing in the event of a breach.
The Judge sentenced Mr Lane to imprisonment for six months for these offences but ordered that that sentence be served concurrently with the sentence of 12 years imposed for the offence of aggravated serious criminal trespass.
The Judge’s Approach to Sentence
The Judge took a serious view of Mr Lane’s offence. He referred in some detail to the circumstances in which the offence was committed, to Mr Lane’s extensive criminal antecedents, and to the need for both personal and general deterrence. The Judge said:
[Mr Lane], you are not a first offender. … You have a comprehensive list of offending and have caused the community much distress over the years. The expression “menace to society” applies to you. …
The offence you committed was very serious for your victims and is in the worst category of offending of this type. The victims have described how your serious offending affected them and how they suffer physically and mentally from the night in question.
In my opinion, the Judge was well justified in taking the view that Mr Lane’s offending called for a more severe sentence than is commonly imposed in like circumstances.
The Judge’s Assessment of Mr Lane’s Previous Offences
Counsel contended first that the Judge had made an error in his assessment of the Mr Lane’s antecedents. The Judge referred with concern to what he said were Mr Lane’s convictions in 2003 for four offences of serious criminal trespass and four offences of larceny, for which he noted that Mr Lane had been sentenced to imprisonment of eight years and one month with a non-parole period of four years.
The Judge was correct in recording that Mr Lane had been sentenced in 2003 for those eight offences. However, the “head sentence” of eight years and one month was in fact the accumulation of sentences imposed on 24 August 2001, 30 August 2001 and 3 October 2003, and the non‑parole period had been fixed by reference to the total period required to be served under those sentences.
Counsel for Mr Lane submitted that the Judge’s erroneous belief that a sentence of eight years and one month had been imposed in 2003 for four trespass offences and four larceny offences was a material error. He submitted that the error may have caused the Judge to consider that he should impose an even greater sentence for the subject offence.
I do not accept this submission. My impression is that the Judge was merely expressing himself in an economical manner by pointing out that Mr Lane had been required in the past to serve substantial periods in custody for offences of a like kind, without Mr Lane being deterred from repetition. Even if that impression be incorrect, the fact of the matter is that Mr Lane had since 2001 committed more than four offences of serious criminal trespass and four offences of larceny, so that if the Judge did err in his assessment of the number of offences previously committed by Mr Lane, it was an error which favoured Mr Lane.
I would reject this ground of appeal.
Account of the Injury to Mr Norris
Next, counsel submitted that the Judge had erred in taking into account as a circumstance aggravating the offence the injury which Mr Norris had suffered.
It is plain that the Judge regarded the stabbing injury to Mr Norris as making more grave the offence of aggravated serious criminal trespass. The Judge said:
Although the jury acquitted you of Count 3, the fact of the injury is still relevant and able to be taken into account. The possession of an offensive weapon as part of the home invasion makes that offence aggravated because of the potential for injury if the householder or a good Samaritan, like Mr Norris, resists someone like you.
Counsel accepted that it was appropriate for the Judge to take account of the potential for injury arising from Mr Lane’s possession of an offensive weapon when committing the aggravated serious criminal trespass but submitted that it had not been appropriate for the Judge to take account of the actual injuries to Mr Norris.
Counsel emphasised that the conduct comprising the offence of aggravated serious criminal trespass with the intention of committing theft had concluded when Mr Lane left the house the first time. His subsequent re‑entry of the house was only for the purpose of evading the attack from Mr Wimpenny’s dog, and he had then exited the front door as soon as he could to make his escape. Mr Norris had not grappled with Mr Lane until well after the conduct comprising the offence had been completed and his only purpose had been to prevent Mr Lane making good his escape.
Plainly, the Judge was not to take into account the conduct of Mr Lane said to constitute Count 3. He had been acquitted of that charge and the conduct said to constitute that charge could not therefore constitute a circumstance of aggravation of the charge of trespass. This Court made this point in R v Delphin:[4]
[I]t seems clear that in cases of what is now serious criminal trespass, where other criminal offences are also committed, Parliament has intended that those offences be separately charged. If they are not charged, or if the verdict in respect of them is not guilty, they should not be taken into account in determining sentence for the serious criminal trespass.[5]
(Emphasis added)
This was an application of the more general principle stated by Gibbs CJ in R v De Simoni:[6]
[T]he general principle that a sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no-one should be punished for an offence for which he has not been convicted … The combined effect of the two principles, so far as is relevant for present purposes, is that a Judge imposing sentence is entitled to consider all the conduct of the accused including that which would aggravate the offence but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.[7]
[4] [2001] SASC 203; (2001) 79 SASR 429.
[5] Ibid at [37], 439.
[6] (1981) 147 CLR 383.
[7] Ibid at 389.
In the present case, the sentencing Judge was alert to these principles and clearly did not take into account, as an aggravating circumstance, the conduct relied upon by the prosecution for Count 3 on which Mr Lane had been acquitted. However, the Judge did consider it appropriate to take into account that a consequence of Mr Lane’s conduct in committing the offence of trespass was the injury to Mr Norris.
In one sense, it could be said that the nature of the injuries suffered by Mr Norris provided cogent evidence of the kind of injury which Mr Lane’s use of an offensive weapon when carrying out the offence of aggravated serious criminal trespass had the potential to produce. There is also a sense in which it can be said that Mr Norris’ injury was a consequence of the offence of aggravated serious criminal trespass as, but for the commission of that offence, Mr Norris would not have had occasion to tackle Mr Lane in an attempt to detain him.
However, it is not every surrounding circumstance which may be taken into account in assessing the seriousness of an offender’s conduct. The passages quoted above from Delphin and De Simoni makes that plain. Some matters will be closely connected with the commission of the offence for which the offender is to be sentenced, and others less so. Caution is always required when the surrounding circumstance in question may be conduct constituting a criminal offence and when, as in this case, it is said to be the result of conduct said to constitute a separate offence for which the defendant was charged and acquitted. The effect of an acquittal is not to be compromised by the Court, when sentencing for one offence taking into account the same conduct, or the same consequences, relied upon for the charge on which the defendant was acquitted.
King CJ spoke of this issue in R v Austin:[8]
It is true that in imposing sentence for a crime, a Judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation.
Just what surrounding circumstances are properly to be taken into account in a particular case is a matter of degree. The courts have to be particularly cautious when the circumstances relied upon themselves may constitute crimes. Often the circumstances amount to crimes of a similar character to that charged and can more readily be taken into account as circumstances of aggravation. Likewise where the criminality of the aggravating circumstances is clearly subsidiary to as well as related to the criminality involved in the conduct constituting the crime charged. Special care, however, is required when the circumstances relied upon as circumstances of aggravation themselves constitute crimes or may constitute crimes of a different character or crimes against different victims.[9]
(Emphasis added)
In Austin the respondent was sentenced for two offences involving the unlawful imprisonment of two students. The Court considered it inappropriate for the sentencing Judge to take into account the conduct of the respondent in relation to the student’s rescuers after the unlawful imprisonment had concluded.
[8] (1985) 121 LSJS 181.
[9] Ibid at 183.
In R v Teremoana,[10] Cox J discussed the relevant principles:
As a general rule, the Judge who is sentencing a person who has been convicted of an offence will have regard to all the circumstances surrounding the offence and this may include its impact upon other people. Care must be taken, however, not to take into account actions of the defendant, however reprehensible they may have been, that were really irrelevant to the crime charged, and special caution is needed if the result of taking something into account will be to punish the defendant for an offence of which he has not been convicted.[11]
Later, Cox J said:
Plainly if the defendant has already been acquitted by the jury on one particular count the Judge may not have regard to allegations distinctive to that count when sentencing the defendant on other counts on which he has been found guilty. The situation will be essentially the same when he pleads guilty to one count and the Crown decides not to press a related charge of a serious offence on the same information, or indeed where a related charge could have been laid but in fact was not. … However, it is certainly not a universal rule that the Judge, when sentencing for the offence specifically charged in the Information, may never have regard to relevant actions of the defendant that, strictly speaking, constituted separate offences. If they were offences of lesser gravity than the offence of which the defendant has been convicted, then it will be a matter of degree and fairness whether they may properly be taken into account as part of the circumstances surrounding the offence charged. If a burglar is disturbed in the course of ransacking a house, and seriously assaults the victim, the assault should be separately charged and not regarded as a mere matter of aggravation of the burglary. On the other hand, relatively minor indecencies that are directly associated with an act of rape, though serious enough in themselves, are often not separately charged but are, nevertheless, taken into account by the sentencing Judge as circumstances of aggravation. … As the Chief Justice said in R v Austin, it is matter of degree.[12]
(Citations omitted, emphasis added)
[10] (1990) 54 SASR 30.
[11] Ibid at 36.
[12] Ibid at 38.

These authorities emphasise the caution required in circumstances such as the present and the need for a careful evaluation of the relationship between the matter relied upon as an aggravating factor and the subject offence. They also indicate that particular care is necessary when the circumstance in question was the subject of, or formed part of, a charge on which the defendant was acquitted.
Counsel for the Director referred to subss 10(1)(a) and (e) of the Criminal Law (Sentencing) Act 1988 (SA). The former requires a sentencing court to have regard to “the circumstances of the offence” and the latter to “any injury, loss or damage resulting from the offence”. However, in the application of those provisions, issues of fact, degree and fairness similar to those discussed in the authorities also arise. There is no bright line separating that which may properly be taken into account from that which may not.
In the present case, a number of matters seem pertinent. In the first place, the injury to Mr Norris was the subject of the charge of aggravated recklessly causing serious harm of which the jury acquitted Mr Lane. Particular caution is therefore required before taking into account the injury to Mr Norris as making worse the offence of aggravated serious criminal trespass.
Further, the injury to Mr Norris occurred after the offence of aggravated serious criminal trespass had been completed. As noted earlier, there is a sense in which Mr Norris suffered the injury as a consequence of the trespass offence, but it is, to my mind, a material consideration that Mr Norris did not suffer his injury during the course of, or as part of, the commission of the offence of trespass. It is also of some relevance to the assessment of the issues of degree and fairness involved that Mr Norris was not himself the householder in the premises in which the offence of trespass was committed; that he suffered the injury in an attempt to detain Mr Lane and not to prevent or terminate the trespass; and, at least on his own account, that he suffered the injury after Mr Lane had left altogether Mr Wimpenny’s property. These matters indicate some separation between Mr Norris’ injury and the conduct comprising the trespass. As the authorities referred to earlier indicate, it is not every matter forming part of sequel which may be taken into account as a circumstance aggravating an offence.
In my opinion, the matters I have mentioned, together with need to avoid any compromise of the verdict of acquittal on Count 3, made it inappropriate for the Judge to regard the injury to Mr Norris as a matter making more serious Mr Lane’s offence of aggravated serious criminal trespass.
Accordingly, I consider that the Judge made an error in his approach to sentencing. That error, by itself, makes it necessary for this Court to re‑sentence Mr Lane without considering independently whether or not the sentence which the Judge imposed should be characterised as manifestly excessive.
Re-Sentence
I agree with the sentencing Judge that Mr Lane’s offence called for a severe sentence. Late at night, and by using a jemmy bar he forced his way into a house by smashing a glass door. He knew at the time that the house was occupied. Mr Lane was indifferent to the terrifying effect which his conduct would have on the household occupants, including children. It is true that he remained in the house for only a short time but on any view this was a violent and upsetting trespass.
Mr Lane’s poor criminal history by itself makes it inappropriate to extend him any lenience. On the contrary, it indicates that considerations of personal deterrence are particularly important in his case. Further, regrettable as it may be, this is a case in which the protection of the public makes the incapacitation of Mr Lane from further offending, by detention in custody, a relevant matter in the sentencing.
In my opinion, an appropriate sentence in this case is imprisonment for 10 years. There can be no reduction from that sentence on account of a plea of guilty. Even at the time of sentencing, Mr Lane was not expressing any contrition for the offence.
I would fix a non‑parole period of seven years and direct that both the head sentence and the non‑parole period commence on 2 May 2010, when Mr Lane was taken into custody.
Summary
For the reasons given above, I would allow the appeal. I would set aside the sentence imposed in the District Court. In its place I would impose a sentence of imprisonment of 10 years and fix a non‑parole period of seven years. Both the head sentence and the non‑parole period are to be taken to have commenced on 2 May 2010.
DAVID J: I agree with the orders proposed by White J and with his reasons.

[2011] SASCFC 101

6 September 2011

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Sentencing

Charge

Appeal

Res Judicata