R v M, D.V. and T, K.F. No. Scciv-03-39

R V M, D.V. and T, K.F.
[2003] SASC 154
Court of Criminal Appeal: Duggan, Lander and Sulan JJ

DUGGAN J. I agree that the appeals against sentence should be dismissed for the reasons given by Lander J.
LANDER J. These two appeals against sentence were heard together. The two appellants, M and T, were jointly charged, together with Craig James, with attempted murder. They were also charged with causing grievous bodily harm with intent to cause grievous bodily harm contrary to s 21 of the Criminal Law Consolidation Act 1935 (SA).
Mathew Granfield was also charged on the same information with impeding the investigation of an offence.
Craig James was tried separately. At his trial his counsel sought an investigation into his mental fitness to stand trial and an investigation was ordered by the trial Judge. The trial Judge, in that trial, found that that Craig James was mentally unfit to stand trial but that the objective elements of each of the offences had been established beyond reasonable doubt.
Craig James appealed against the trial Judge’s finding that the objective elements of the offences had been made out. The Court of Criminal Appeal allowed the appeal, set aside the findings of the trial Judge and substituted an order dismissing the charges against him: R v James [2002] SASC 311.
When the appellants were arraigned M pleaded guilty to both the charges and T pleaded not guilty to both charges.
M’s counsel sought an adjournment and a short time later M was re-arraigned and he pleaded not guilty to both counts.
At the instigation of both appellants a voir dire examination commenced. M sought an order excluding a number of conversations that he had had with police officers from the evidence and the trial. T also sought the exclusion of certain evidence.
In due course the trial Judge ruled that some evidence of conversations M had with police officers should not be admitted in the trial but that other evidence of such conversations should.
After the ruling on the voir dire M was re-arraigned and pleaded guilty to the offence of attempted murder. He did so acknowledging an intention to kill.
T was re-arraigned and pleaded guilty to the second count, the offence of causing grievous bodily harm with intent to cause grievous bodily harm. Although that charge appeared on the information as a separate charge to the charge of attempted murder both the prosecution and the accused proceeded upon the basis that count 2 was an alternative charge to count 1.
The Director of Public Prosecutions refused to accept T’s plea in satisfaction of the charge of attempted murder.
The trial therefore proceeded against T only. T was convicted by the jury of attempted murder.
The sentencing Judge sentenced both men to a term of imprisonment of 11 years and in each case fixed a non-parole period of seven years and six months. In both cases the head sentence and the non-parole period were to commence from the date upon which each of the men went into custody; in the case of M, from 3 May 2001 and in the case of T, 29 April 2001.
Whilst both men were convicted of attempted murder, and whilst both men received exactly the same sentences the particular sentences were arrived at for different reasons.
In the case of M, the sentencing Judge said that he proceeded upon the basis that M had acknowledged, by his plea and otherwise, that he intended to kill the victim. The sentencing Judge said that but for the plea entered by M he would have sentenced him to 12 years imprisonment. He reduced that period of imprisonment by one year for the plea.
The sentencing Judge sentenced T upon the basis that he was party to a joint enterprise and not on the basis that he had a specific intent to kill the victim. In other words, the sentencing Judge proceeded upon the basis that T at least recognised as a reasonable possibility that one of the other members of the joint enterprise, presumably M, might, during the commission of the joint enterprise, form an intention to kill and in those circumstances T was thereby guilty of attempted murder.
The sentencing Judge therefore discriminated between the two men in relation to the factual basis for sentencing.
He said, in relation to T, that he took into account T’s better prospects of rehabilitation in fixing the same penalty as he had imposed on M.
In summary therefore, M’s sentence was reduced by one year for his plea. T’s sentence was reduced by one year because of the different basis upon which he was sentenced, and his better prospects of rehabilitation.
In the first instance both appellants claimed that the sentence imposed on each of them was manifestly excessive. Both appellants abandoned that ground on this appeal. Both recognised that the individual sentences which were imposed were within the proper exercise of the sentencing Judge’s discretion.
Both, however, claim that the sentence which was imposed on each of them should have been less than that imposed upon the other.
M had one other discrete ground of appeal. He claimed that the discount given for his plea was insufficient.
M co-operated with the police inasmuch as he surrendered to the police in the early hours of 3 May 2001 some three or four days after the commission of the offence. At that stage he had been drinking. During his interview with a police officer he expressed contrition and remorse for what he had done. He said he gave himself up because he could not live with the guilt. He assisted the police by showing them the location of items of evidence which had been hidden.
M is a 33 year old man who has a mild intellectual disability. He has a history of severe abuse problems and alcoholism. He may suffer from a degree of alcohol related brain damage. A psychologist offered the opinion that his intellectual disability was mildly severe and would cause him problems in a court room environment.
M submitted on appeal that the discount given amounted to 8.3 per cent of the head sentence and, in those circumstances, was insufficient having regard to his contrition and remorse as expressed to police, his co-operation with police and “his mental state ... at the time of his guilty plea”.
In my opinion, there was nothing about his mental state to which the Judge was required to have regard in determining an appropriate sentence.
M pleaded not guilty in circumstances where he had previously made full admissions to the police. It must be assumed that M was advised that such a course carried with it the risk that an otherwise generous discount which might be given by a sentencing judge would be significantly reduced.
M’s plea was entered by a person who was fit to plead and who was represented by counsel. The sentencing Judge was entitled to assume that M was well aware of the import of his plea and the risks associated with it.
The plea, in my opinion, was inconsistent with the previous contrition and remorse shown by M. The plea also put the prosecution to the cost of a trial or at least a voir dire examination within the trial.
It is not necessary to discuss again the reasons why a sentencing judge may discount a term of imprisonment where the person charged pleads guilty at the first available opportunity. The principles are clearly stated in R v Shannon (1979) 21 SASR 442 and have been recently reconsidered by this Court in R v Place (2002) 81 SASR 395.
A guilty plea might qualify a prisoner for a discount where the plea results from contrition or, alternatively, from a desire to co-operate with the authorities in the administration of justice. If a sentencing judge believes that the plea has been entered for either or both of those reasons, the sentencing judge may discount the penalty which would be otherwise imposed, but that is a matter in the discretion of the sentencing judge. If the sentencing judge discounts the penalty for a guilty plea, then consistent with authority the sentencing judge will identify the extent of the discount given and the reasons for it. The extent of the discount is very much in the discretion of the sentencing judge.
There are very many factors which might impact upon the discount to be given. A matter which will affect the amount of the discount is whether the plea truly arose out of contrition or was no more than a recognition of the inevitability of a conviction. The timing of the plea will also be an important factor in determining the extent of the discount. The earlier the plea is entered the more likely the court will recognise the plea as evidence of contrition and/or a willingness to co-operate with the authorities.
A plea which is entered after the commencement of the trial, and after the voir dire examination within the trial, is hardly much evidence of contrition and even less evidence, in my opinion, of a willingness to co-operate with the authorities.
In my opinion, the sentencing Judge could have, within the proper exercise of his discretion, in this case, refused to give any discount to M for his plea. That he was prepared to reduce the sentence by one year, in my opinion, cannot be criticised by M. The discount was, in my opinion, well within the scope of the sentencing Judge’s discretion.
Both appellants claim that they have a justifiable sense of grievance in that the sentence of imprisonment imposed on each was too high compared with the other.
M argued that the sentencing Judge should not have discriminated in respect of the factual basis upon which each of the appellants were sentenced. M argued that T was part of a joint enterprise and participated with the knowledge that an attempt to kill the victim might occur and, in those circumstances, each accused should have been sentenced equally, except that in M’s case he should have received a discount for his plea. Further M says that T’s prospects of rehabilitation were no greater than M’s.
T, on the other hand, argued that because the sentencing Judge found that T’s criminality or culpability was less than that of M, the starting point for T’s sentence should have been lower which would have led, after giving appropriate credit for T’s better prospects of rehabilitation, to a lesser sentence for T.
The Judge had to consider the degrees of criminality or culpability of each appellant but, of course, in doing so, he ultimately had to sentence both of them for the same offence. He was entitled, although not bound, to sentence T upon the basis that T did not form the specific intention to kill but was guilty of attempted murder because he was a party to the joint enterprise and foresaw as a possibility that someone involved in the joint enterprise might attempt to kill the victim.
In the circumstances of this case, the distinction between the particular involvement of each appellant is a fine one which, in my opinion, could not have led to any appreciable difference in the starting points for the two sentences. Indeed, in my opinion, if all other things had been equal the sentencing Judge could have arrived at a sentence of imprisonment which was the same for both appellants.
The sentencing Judge was right to recognise T’s better prospects of rehabilitation. He was entitled to give M some discount for his plea albeit that it was not entered until the conclusion of the voir dire hearing.
In the end, in my opinion, the sentencing Judge weighed up all of the factors relevant to each of M and T and arrived at sentences for each of the appellants which were the same and which were within the proper exercise of his sentencing discretion.
The sentences themselves are not manifestly excessive. They are not such as to give rise to any justifiable sense of grievance for either appellant.
Both appeals must be dismissed.
SULAN J. I agree that the appeals against sentence should be dismissed for the reasons given by Lander J.

[2003] SASC 154

29 May 2003