R v Lennon

R v LENNON
[2003] SASC 337
Court of Criminal Appeal: Doyle CJ, Prior and Vanstone JJ

DOYLE CJ: This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed by the District Court.
The application for leave to appeal is to be considered on the basis of the principles stated by the High Court in Everett v The Queen (1994) 181 CLR 295. As a matter of practice this court has consistently applied the approach stated by King CJ in R v Osenkowski (1982) 30 SASR 212. I refer to what I said on the point in R v Shepperbottom [2001] SASC 31; (2001) 121 A Crim R 69; (2001) 212 LSJS 486 and in R v Elliott [2001] SASC 101; (2001) 121 A Crim R 254. That is the approach which I take in the present case to the application for leave to appeal and, consequent on the grant of leave, to the appeal itself.
Mr Lennon pleaded guilty to a charge of unlawfully and maliciously wounding his defacto wife, with intent to do her grievous bodily harm, contrary to s 21 of the Criminal Law Consolidation Act 1935 (SA). The offence attracts a maximum punishment of life imprisonment.
The judge imposed a sentence of imprisonment for 18 months, and fixed a non-parole period of 10 months. That sentence was imposed on 24 July 2003, about eight weeks before the application for leave to appeal was heard by this court. The judge directed that the sentence commence from 20 December 2002, the date when Mr Lennon was taken into custody. Accordingly, the non-parole period will expire about one month after the application for leave to appeal was heard, and within a few weeks of the court’s decision being given. As will appear, this is of significance in deciding the case.
I should add that the application for leave to appeal was made promptly, having been filed in the registry on 7 August 2003.
Mr Lennon is a 43 year old Aboriginal man. He was born in Port Augusta and appears to have spent his life in country towns.
The circumstances of the offence are these. Mr Lennon was affected by alcohol. An argument developed between him and his defacto wife. According to the judge the relationship between them was not particularly good, arguments between them being quite frequent, especially when Mr Lennon was affected by alcohol.
On the occasion in question Mr Lennon completely lost his temper. He picked up a shovel and struck his defacto a number of times on the head with the blade of the shovel. He caused severe lacerations to her head. A medical report states that the victim had a laceration to her scalp which was about 10 centimetres in length and which was “bone deep”. This was a serious injury. I gather the Mr Lennon struck the victim more than once on the head. He threatened to break her legs. He struck her across the knees with the shovel handle. He then struck her on the arm with the sharp end of the shovel. At the time her arm was in plaster, as a result of a broken arm.
In Mr Lennon’s favour it can be said that the offence was committed on the spur of the moment, while he was affected by alcohol and as a result of him losing his temper. Within a short time he realised what he had done, and the judge accepted that he was immediately remorseful and felt shamed by what he had done. The judge also accepted that his conduct was attributable to “mounting tension in the domestic situation” with which Mr Lennon was unable to cope.
However, despite all that this was a very serious offence. It was a brutal and cowardly attack. Mr Lennon is fortunate that his defacto did not suffer more serious injury than she did. Not surprisingly, the relationship between Mr Lennon and his defacto has come to an end. According to the victim impact statement two of her children, who were present at the time, have suffered adverse effects from the incident.
It is also relevant to note that Mr Lennon admitted that he had a real problem with excessive consumption of alcohol, and with controlling his temper. That is borne out by his record. He has a number of offences, stretching back to 1980. About half of them are fairly minor. But he has four convictions for common assault, the most recent being in 1993, and three convictions for assault occasioning actual bodily harm, the most recent being in January 2002. On two occasions he has been given the benefit of a bond. For the offence in January 2002, which was committed in another State, he received a community based order requiring 100 hours of community service.
The court has said consistently that it must do what it can to protect women from violence by men. This applies just as much to violence within a domestic relationship as it does to violence in other situations. In cases like this the community expects, and protection of women requires, that the court should impose a sentence that is likely to deter the individual offender and to deter other potential offenders. The fact that the violence occurs on the spur of the moment is a relevant factor, but this is often true in the case of domestic violence. The impulsive nature of such offences is often offset by the fact that, as here, there is a pattern of violence within the particular relationship, or on the part of the particular offender. Mr Lennon’s record makes it clear that he has not yet learned that violence towards women cannot be accepted.
When one takes into account the seriousness of the circumstances of the offence, and of the injuries, and Mr Lennon’s record, the sentence imposed by the judge is much too low.
There is no error apparent in the judge’s sentencing remarks. However, it is notable that the judge does not identify any particular reason for such a low sentence. The mitigating factors to which the judge refers were relevant matters, but cannot justify such a low sentence for this crime and for this offender.
I have not overlooked the fact that Mr Lennon is an Aboriginal man, and that sometimes that factor may require particular consideration in deciding an appropriate sentence. In the present case nothing of particular significance has been identified in that respect, other than a submission put to the judge that because Mr Lennon is an Aboriginal person, time in custody will be difficult for him.
I am satisfied that the sentence is inadequate, and that the inadequacy indicates an error in the sentencing process. The sentence imposed is outside the acceptable range.
Leave to appeal will not be granted to the Director simply because an error is demonstrated. More than that must be shown. In the present case the sentence is so far below the appropriate level that I consider the court should grant leave to appeal. My view is that the head sentence should have been at least twice what it was, and that the non-parole period should have been substantially more.
If leave to appeal is granted, it is then necessary to consider whether the court should in fact interfere. I consider that it should. It is not sufficient simply to identify the sentence as unduly low, but to leave it stand. The public interest requires that the sentence be corrected, because otherwise the punishment imposed would be so inadequate as to shake confidence in the administration of justice.
Accordingly, I would grant leave to appeal and allow the appeal. I would increase the head sentence to a sentence of imprisonment for four years.
Fixing an appropriate non-parole period is more difficult. I consider that it should have been of the order of three years, bearing in mind in particular Mr Lennon’s poor record.
However, the fact that the non-parole period fixed by the judge will expire within a few weeks is a significant factor. Although the public interest calls for a longer non-parole period, it would be particularly hard on Mr Lennon at this late stage, to increase his non-parole period by more than two years. The closeness of the release date is a significant factor.
Taking all things into account, I would fix a non-parole of twenty months, twice the existing non-parole period, but still substantially less than would have been appropriate at the outset.
The increase in the head sentence will mean that although Mr Lennon has escaped with a lesser non-parole period that should have been imposed, he is likely to be on parole for a period slightly in excess of two years. Should he offend again within that time, it is likely that he will serve the balance of his term of imprisonment, and hopefully this will provide a very strong inducement to him to change.
Conclusion
For those reasons I would grant leave to appeal, allow the appeal, set aside the sentence imposed by the District Court, impose a sentence of imprisonment for four years, and fix a non-parole period of twenty months in relation to the head sentence of four years. I would direct that the head sentence and non-parole period commence from 20 December 2002.
Finally, I note that the information particularises the offence as having been committed on 20 December 2003. That is an obvious error. The date should be 20 December 2002. Because of a doubt about this court’s power to amend the information, it has not been amended. The Director should consider whether, by application to the District Court, the appropriate correction can be made.
PRIOR J: I agree with the reasons given by the Chief Justice. Leave to appeal should be granted, the appeal allowed and the sentence proposed by him substituted for that imposed in the District Court.
VANSTONE J. I would grant leave to allow the appeal. I agree with the reasons given by the Chief Justice and with the orders he proposes.

[2003] SASC 337

2 October 2003