R v Lean

Case [2017] SASCFC 101

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LEAN

[2017] SASCFC 101

Judgment of The Court of Criminal Appeal

(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Hinton)

14 August 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS

Crown appeal against sentence for 47 counts of deception and one count of attempted deception, for which the respondent was sentenced to imprisonment for six years and eight months with a non-parole period of three years.  The sentence was suspended and the respondent ordered to serve the sentence on home detention.  The co-offender, who was convicted of all but the first count of deception, was not granted home detention.

On appeal the Director of Public Prosecutions contends that the sentence imposed was manifestly inadequate; that the gravity of the offending rendered this case unsuitable for an order that the term of imprisonment be served on home detention.

Held: Appeal allowed.  The sentence was so inadequate as to warrant intervention, even in light of the principles governing Crown appeals against sentence.  All circumstances considered, including acceptance of the fact that imprisonment of the respondent is not required to protect the community, a punitive response greater than that provided for by the home detention order imposed was required to adequately meet the purposes of punishment.  The respondent is to be resentenced.

Criminal Law Consolidation Act 1935 (SA) s 139, s 270A; Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(n), s 18A, s 33BB, s 33BC, s 38, referred to.
Walsh v Department of Social Security (1996) 67 SASR 143, discussed.
R v McIntosh [2017] SASCFC 87; House v The King (1936) 55 CLR 499; R v Osenkowski (1982) 30 SASR 212; Dinsdale v The Queen (2000) 202 CLR 321; R v Morse (1979) 23 SASR 98; R v Howatt [2017] SASCFC 41; Barbaro v The Queen (2014) 253 CLR 58; Hili v The Queen (2010) 242 CLR 520; R v Davies (1996) 88 A Crim R 226; R v Dell; R v Dell (2016) 126 SASR 571; R v Buckman (1988) 47 SASR 303; R v Hosking [2017] SASCFC 50; R v Filipponi (2016) 126 SASR 464; The Queen v Vasin; The Queen v Scherf (1985) 39 SASR 45; R v Way (2004) 60 NSWLR 168; Green v The Queen (2011) 244 CLR 462; Lowe v The Queen (1984) 154 CLR 606; R v Wirth (1976) 14 SASR 291; R v Constant (2016) 126 SASR 1; R v M, G [2016] SASCFC 116, considered.

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R v Lean [2017] SASCFC 101
Case
[2017] SASCFC 101
Decision Date

CaseChat Overview and Summary

This case concerned a Crown appeal against the sentence imposed on the respondent, who had been convicted of 47 counts of deception and one count of attempted deception. The sentencing judge had imposed a term of imprisonment of six years and eight months, with a non-parole period of three years. However, this sentence was suspended, and the respondent was ordered to serve it under home detention. A co-offender, convicted of all but the first deception count, had not been granted home detention. The appeal was heard by Stanley, Nicholson, and Hinton JJ.

The central legal issues before the court were whether the sentence imposed was manifestly inadequate and whether the home detention order resulted in a penalty so far below what was appropriate as to undermine the administration of justice. The court was required to consider the principles governing Crown appeals against sentence, particularly the grounds for interference based on manifest excess or inadequacy, and the principle of parity between co-offenders.

The court considered submissions regarding the hardship to the respondent's children if she were imprisoned, drawing authority for the proposition that the welfare of children may warrant amelioration of a custodial sentence when both parents face imprisonment. However, the court also referred to established principles for determining manifest inadequacy or excess, which involve assessing the sentence against the maximum penalty, customary sentencing standards, the seriousness of the conduct, and the offender's personal circumstances. The Director's submission focused on the gravity of the respondent's conduct, the breadth of the deceit, the harm to victims, and the need for general deterrence.

Ultimately, the court concluded that the sentence imposed was manifestly inadequate and that the home detention order resulted in a penalty so far below what was appropriate as to undermine the administration of justice. The court found strong reasons of public policy to grant permission to appeal, notwithstanding the public interest in avoiding double vexation. The court granted permission to appeal and allowed the appeal, indicating a further hearing would be held to determine the appropriate sentence.

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

For these reasons, in my view, the sentence imposed was manifestly inadequate. Further, for the same reasons, I consider the home detention order to result in the imposition of a penalty so far below what was appropriate in all the circumstances as to undermine the administration of justice. I make plain that in arriving at such conclusion I consider that strong reasons of public policy exist which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State.Conclusion I would grant permission to appeal and allow the appeal. I would hear from counsel further on the appropriate sentence to be imposed.

Ratio Decidendi

Legal Principle Established

With respect to the extension of mercy, counsel for the respondent relied upon the hardship that would be occasioned to the respondent’s children as referred to in Mr Encel’s report if the respondent was imprisoned in addition to her husband. He drew the Court’s attention to Walsh v Department of Social Security as authority for the proposition that where the parents of young children are both facing a custodial sentence, the sentence imposed on one may be ameliorated in order that the welfare of the children be adequately protected.[7][7] (1996) 67 SASR 143.Consideration In Dinsdale v The Queen Gleeson CJ and Hayne J said:[8]Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.[8] (2000) 202 CLR 321 at [6]; see also, Hili v The Queen (2010) 242 CLR 520 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ). In R v Morse King CJ described in some greater detail the process to be undertaken by this Court where manifest excess was asserted.[9] He said:[10]There is no suggestion that the learned sentencing Judge made any error of fact or law or that he failed in any way to take into account the relevant considerations. This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. …[9] (1979) 23 SASR 98.[10] R v Morse (1979) 23 SASR 98 at 99. No different approach applies where, as in this case, the contention is one of manifest inadequacy. The Director’s submission, starkly put, focuses on retribution – the gravity of the respondent’s conduct is such that she deserves a punitive experience no less than that provided by her immediate imprisonment. It is then said that if the respondent is subjected to anything less than such punitive experience, the sentence imposed will not likely deter others who might be tempted to offend in a manner similar to the respondent. Underpinning the submission is, essentially, the breadth of the deceit and the depth of the harm done to the various victims over the best part of two years.