(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Parker)
10 December 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - TO ADMIT NEW EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
Application for permission to appeal against sentence for aggravated causing harm with intent - sentence of three years imprisonment with non-parole period of one year imposed - whether sentence manifestly excessive - whether judge erred in failing to suspend sentence - no specific error alleged - whether nature of error such as to justify intervention of an appellate court - whether submission that inadequate weight was given to a matter is, even if made good, sufficient to amount to House v The King error. Application to admit new material – whether new material satisfies the requirements of fresh evidence.
Held per Gray, Vanstone and Parker JJ: application for permission to appeal refused - sentence imposed was in the range of sentencing discretion available to the judge. Application to admit new material refused – the material does not satisfy the requirements of fresh evidence.
Held per Gray J:
1. The sentence was well within the sentencing discretion of the judge.
2. No error of sentencing principle on the part of the judge was identified.
3. The judge had regard to all material matters and did not have regard to any immaterial matters.
4. The offending was too serious to allow for a suspension of the sentence.
5. The judge appropriately reflected the defendant’s personal antecedents in the setting of a merciful non-parole period.
6. The character references sought to be tendered on the application could have been obtained by the defendant with reasonable diligence and do not shed new light on matters before this Court or the sentencing judge.
7. The judge had regard to the primary psychological report and it was not clear how a supplementary report, which was not available on the hearing of the application for permission, would satisfy the requirements of fresh evidence.
Held per Vanstone and Parker JJ:
1. Where it is sought to enliven the appellate court's authority to intervene on sentence the principle in House v The King requires either an identifiable error of fact or law or demonstration of manifest excess or inadequacy.
2. A submission that too little weight was given to a factual matter does not, standing alone, justify appellate intervention.
3. A complaint about the decision not to suspend a sentence must be…
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.
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Details
AGLC
R v Lutze [2014] SASCFC 134
Case
[2014] SASCFC 134
Decision Date
CaseChat Overview and Summary
The applicant, Kynan Craig Lutze, sought permission to appeal against a sentence of three years imprisonment with a non-parole period of one year, imposed by the District Court following his conviction for aggravated causing harm with intent to cause harm. The offence involved the applicant smashing a glass into the face of another man at a bar, causing significant lacerations and permanent disfiguring scarring. The applicant also sought to tender further evidence on appeal, primarily character references.
The legal issues before the Full Court of the Supreme Court of South Australia were whether the sentence imposed was manifestly excessive, whether the sentencing judge erred in the exercise of discretion by failing to suspend the sentence, and whether the additional evidence sought to be tendered should be admitted on appeal. The court was required to consider the principles governing appeals against sentence, the powers of an appellate court to admit new evidence, and the appropriate application of sentencing principles, including general deterrence and the consideration of an offender's antecedents.
The court reasoned that the sentencing judge had properly considered all relevant matters and had not taken into account any irrelevant considerations. The judge's remarks indicated a careful assessment of the seriousness of the offence, the impact on the victim, the need for general deterrence in response to unprovoked violence in public places, and the applicant's personal circumstances and prior offending. The court found no error in the exercise of discretion not to suspend the sentence, deeming the offending too serious for such an approach. Furthermore, the court refused to admit the additional evidence, finding that the character references could have been obtained with reasonable diligence prior to sentencing and did not shed new light on the matters before the court.
Permission to appeal against sentence was refused, and the application to tender further evidence was also refused.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
This is an application for permission to appeal against sentence. Background The defendant and applicant, Kynan Craig Lutze, was charged on Information with aggravated causing harm with intent to cause harm.[1] It was alleged that, on 6 January 2013 at Glenelg, the defendant caused harm to CJS intending to cause him harm. It was further alleged that this offence was aggravated by the defendant’s use of an offensive weapon, namely a glass object. The defendant pleaded not guilty to aggravated causing harm with intent to cause harm but pleaded guilty to causing harm with intent to cause harm. [1] Criminal Law Consolidation Act 1935 (SA) section 24(1). On 23 May 2014, following a trial before a jury in the District Court, the defendant was convicted of aggravated causing harm with intent to cause harm. On 1 August 2014, the defendant was sentenced in the District Court to a period of imprisonment of three years with a non-parole period of one year. On 29 September 2014, permission to appeal against that sentence was refused by a Judge of this Court. The circumstances of the offending may be summarised as follows. At approximately 1.30 am on 6 January 2013, the defendant, then aged 25 years, was at the Jetty Bar in Glenelg with friends. He had consumed around eight imperial pint glasses of beer and two glasses of Irish whiskey. The defendant knew one of the women at the venue. He became jealous when he saw her interacting with CJS, a man aged in his late twenties, who was not known to him. Within a matter of minutes, the defendant approached CJS and smashed a pint glass into his face. The defendant then fled. As a result of the attack, CJS sustained multiple lacerations to the left side of his face and neck. He attended at the Royal Adelaide Hospital emergency department, where his wounds were treated. 28 stiches were required. In addition, further wounds to his face, including wounds to his nose and left eye lid, were closed with glue. CJS has been left with permanent disfiguring scarring, although some possible improvement may result from further plastic surgical revision. He is now wary of attending at hotels, bars and clubs. He suffers occasional flashbacks of the attack, which has been described by his general practitioner as a mild anxiety state.The Application for Permission to Appeal The defendant’s notice of appeal contends that his sentence was manifestly excessive and that the Judge erred in the exercise of his discretion by failing to suspend the sentence of imprisonment. The Defendant’s Criminal Antecedents In 2006, the defendant was at a suburban hotel when an incident occurred on a crowded dance floor. The defendant was accidentally bumped into by another young man. A short time later, the defendant threw a glass bottle at this young man, striking him on the head. The bottle also struck a female patron on the head. The blow to the male victim was severe, causing lacerations that required five stiches. The defendant pleaded guilty to the offence of intentionally causing harm. When sentencing, the Magistrate remarked:I am sure you have learnt from this incident. You come to court with no prior offending history. You are a young man making your way in life. I am not going to let this incident spoil your future, but I need to underline the seriousness of the charges.I note that you are working and so I am going to impose a hefty fine on you which I hope will deter you from any future misconduct. Without conviction you will be fined $750 with court costs, levy and prosecution costs.Can I say this, if in the future there is a sniff of trouble in clubs, hotels or any place you are at, I urge you not to play the “man” but pack your bags, leave and get out of there as soon as you can.The defendant’s antecedent report also records that, in 2005, the defendant pleaded guilty to the offence of carry an offensive weapon. On this occasion, no conviction was recorded and the matter was dismissed without penalty.
Evidence
Evidence Before The Court
On the topic of general deterrence, the Judge said:Persons like [CJS] are entitled to go out of a night, have a few drinks and enjoy themselves in the company of others without having to worry about someone taking things the wrong way and then acting aggressively and dangerously, as you did.Unprovoked acts of violence at hotels, bars and nightclubs are becoming far too common. The community is rightfully sick of it and the community deserves protection from those who are not willing or able to control their anger. General deterrence is, therefore, a very important sentencing consideration for offences of this nature. This means sending a strong message throughout the community that if you act violently in a public place, you will be imprisoned.Further Evidence Before this Court, the defendant sought to tender evidence not put before the Judge. This evidence consisted of further character statements and a yet to be received addendum medical report from Dr Pam Carroll, the defendant’s psychologist. Counsel for the Director of Public Prosecutions opposed the receipt of the fresh evidence. It was submitted that the character references could have been obtained with reasonable diligence prior to sentencing and that any report would not shed new light on the material before the sentencing Judge. In regard to Dr Carroll’s addendum report, it was submitted that this was an “update” and did not meet the test for fresh evidence. This Court may receive further evidence on an appeal “if it considers it necessary or expedient in the interests of justice”.[2] The principles concerning the receipt of fresh evidence were set out in Dorning in the following terms:[3]In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible, but the Full Court will not necessarily decide whether the witness from whom the new evidence is sought is telling the truth: Orchard v. Orchard. See also Reg. v. Parks, cited in In re van Beelen. It was pointed out in In re van Beelen that applications under s 359 to lead fresh evidence are never lightly granted.[Citations omitted.][2] Criminal Law Consolidation Act 1935 (SA) section 359. [3] R v Dorning (1981) 27 SASR 481, 485-6. See also R v Liosatos [1964] SASR 40; R v Many (1990) 51 A Crim R 54; R v McIntee (1985) 38 SASR 432; R v Goodwin (1990) 51 A Crim R 328; R v Rostom (1995) 83 A Crim R 58; R v Sladic (2005) 92 SASR 36; R v Pickard [2011] SASCFC 134, [41]-[42] (Gray J); [105] (Blue J). I would refuse permission to tender the additional character references. This evidence would have been available to the defendant with reasonable diligence – the referees who had not previously been contacted to provide a reference for him at trial were his father and his domestic partner. Further, I consider that the statements do not shed new light on matters before this Court or the sentencing Judge.
Decision
Reasons for decision
GRAY J
A review of the sentencing remarks discloses that the Judge had regard to all material matters and did not bring into account any immaterial matters. No error of sentencing principle was identified. I do not consider that any basis has been established on which to criticise the Judge’s exercise of his discretion not to suspend the sentence of imprisonment. It is evident that the Judge paid close regard to the personal antecedents of the defendant and to his steps toward rehabilitation. I agree with the Judge that the defendant’s offending was too serious to allow for a suspension of the sentence.Conclusion I would refuse permission to appeal. I would also refuse the application to tender further evidence on the application for permission to appeal. VANSTONE AND PARKER JJ: After a trial in the District Court before judge and jury the applicant was convicted for aggravated causing harm with intent to cause harm. The offence carries a maximum penalty of imprisonment for 13 years. A sentence of three years imprisonment with a non-parole period of 12 months was imposed. The applicant now renews his application for permission to appeal against that sentence, permission having been refused by a single judge of this Court. He also seeks to place before the Court some additional material, mainly references. For the reasons which follow we consider that permission to appeal should be refused.Background The offence was a particularly serious one of its kind. Briefly stated, the facts as found by the sentencing judge were as follows. The applicant and a friend were at the Jetty Bar at Glenelg in the early hours of the morning of 6 January 2013. A young woman in whom the applicant was romantically interested was also there with other friends. At some point after 1 o’clock in the morning, and after the applicant had taken a good deal of liquor, he noticed that young woman talking to another man. He became jealous and angry. He walked up to the man and, without warning, smashed his pint glass into the left side of that man’s face. A significant injury was caused to the victim. He is left with prominent facial scarring as well as psychological sequelae. This was not the applicant’s first appearance in the courts. In February 2007 he came before the Magistrates Court facing a charge of carrying an offensive weapon, that charge dating back to May 2005. The charge was dismissed without conviction. Then in May 2007 the applicant was again before the Magistrates Court when he pleaded guilty to a charge of causing harm. The incident itself had occurred in August 2006. He was again discharged without conviction, but with a fine imposed. The remarks on penalty made by the magistrate in relation to that matter were before the sentencing judge. They revealed that the applicant had thrown a bottle at another man causing an injury which required five sutures. The magistrate said there was an “element of provocation” involved. With some prescience the magistrate warned the applicant to avoid any “sniff of trouble” which might occur in clubs, hotels or other places in the future.