R v Makevits - [2006] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MAKEVITS
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Layton)
15 March 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Application by Crown for leave to appeal against sentence - the respondent pleaded guilty to one count of wounding with intent to cause grievous bodily harm and two counts of threaten life - respondent sentenced to four years and three months head sentence with a two year non-parole period - whether sentence was manifestly inadequate and amounted to an error of principle - whether matters of general deterrence, personal deterrence and punishment given appropriate weight - whether too much weight given to the respondent's age and prospects of rehabilitation - whether difference between the sentence imposed and that which ought to have been imposed so great to amount to an error of principle - consideration of aggravating features, protection of the public and appropriate standards of sentencing - consideration of principles which apply to the exercise of the discretion by the Court to grant leave to the Crown to appeal against sentence - Held: the sentence was manifestly inadequate - leave to the Crown to appeal against sentence - appeal allowed - respondent re-sentenced to six years and eight months with a non-parole period of three years and four months.
Criminal Law Consolidation Act 1935 s 19(1), s 21; Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Angus [2004] SASC 317; R v Dubois (2004) 88 SASR 304; Everett v The Queen (1994) 181 CLR 295; Markarian v The Queen (2005) 215 ALR 213; R v Nemer (2003) 87 SASR 168; R v Payne (2004) 89 SASR 49; R v Petroff [2005] SASC 449; R v Thompson (1975) 11 SASR 217; R v Osenkowski (1982) 30 SASR 212; R v Williscroft [1975] VR 292; Veen v The Queen (No 2) (1988) 164 CLR 465, considered.

R v MAKEVITS
[2006] SASC 73
Court of Criminal Appeal: Doyle CJ, Sulan and Layton JJ

DOYLE CJ: I agree with the orders proposed by Layton J. There is nothing that I wish to add to her reasons for making those orders.
SULAN J: I would grant leave to appeal and allow the appeal. I agree with the reasons of Layton J. I would set aside the sentence of the Judge and substitute the sentence proposed by Layton J.
LAYTON J: This is an application made by the Director of Public Prosecutions (“the DPP”) for leave to appeal against a sentence imposed by a Judge of this Court on 8 December 2005. The respondent, Nathan Gordon Makevits pleaded guilty to one count of wounding with intent to do grievous bodily harm contrary to s 21 of the Criminal Law Consolidation Act 1935 (“the Act”) and with two counts of threatening life contrary to s 19(1) of the Act. The learned sentencing Judge imposed one sentence of four years and three months. But for the guilty pleas, the sentence would have been four years and six months. A non-parole period of two years was fixed.
The Director’s application for leave to appeal against the sentence is made on the ground that the sentence was manifestly inadequate. This ground is argued on the basis that the sentence fails to reflect the criminality of the conduct; adequately reflect general and personal deterrence; appropriately reflect the aggravating features of the offending and maintain adequate standards of punishment for offending of this nature.
The Circumstances of the Offending
On 26 February 2005 the respondent was a passenger in a car being driven by a companion, Mark Hulford around streets in Mount Gambier, South Australia. Mr Hulford was doing burnouts in his car on Matthew Flinders Way. As the two were leaving the area, they drove past the victim, Adam Muller. Mr Muller and his family were moving furniture to a new home when they observed the car being driven erratically, doing burn-outs, fish-tailing, going from one side of the road to the other all at a fast speed.
Mr Muller was reversing his car and a trailer into his driveway when the car drove past. Mr Muller beeped the horn and shouted out for them to slow down. Mr Hulford pulled over. Both Mr Hulford and the respondent got out of the car.[1] Before getting out the respondent took out a large hunting knife belonging to Mr Hulford which had been down the side of the car seat for a couple of months. After getting out of the car and while on the road, the respondent took the knife out of its sheath.
[1] Statement of Mark Ian Hulford, 10 October 2005, 3.
Mr Muller remonstrated with them telling them that they should slow down as there were children in the area and they were driving like idiots. Words were exchanged and the respondent pushed Mr Muller in the upper body. Mr Muller responded by punching the respondent in the head. At about the same time the respondent stabbed Mr Muller in his abdomen with the knife. The respondent then started waving the knife around and screaming that he would kill Mr Muller. He then moved towards Mr Muller’s father who was by this time standing at the back of the car. Mr Muller’s mother was also standing nearby at the time. The respondent continued to wave the knife around screaming threats to kill both Mr Muller and his parents.
The respondent and Mr Hulford then got back in the car and drove to the respondent’s house where they changed their clothes and the knife was cleaned. They then made their way to a couple of hotels where they began drinking.[2]
[2] Statement of Mark Ian Hulford, 10 October 2005, 7.
Mr Muller was taken to the Mount Gambier Hospital with a single stab wound in the upper abdomen of five to six centimetres in length and with a laceration to the liver. Luckily a visiting Consultant Surgeon happened to be on call at the hospital and assessed that it was a “potentially life threatening injury”.[3] Mr Muller underwent emergency surgery followed by a week in hospital.
[3] Statement of Dr Dragos Iorgulescu, 23 March 2005, 2.
Both the stabbing and the threats to kill caused great trauma to Mr Muller and his family. The Judge found that the experience was very frightening and the impact on the Muller family has been “significant and long-term” as evident from the victim impact statements. The Judge accepted submissions that Mr Muller was particularly fortunate to survive the attack as a result of the surgeon coincidentally visiting the hospital on that particular day.
The Respondent
The respondent was born in 1984 and was almost 21 years of age at the time of sentencing. His criminal antecedent report indicates that he has been convicted of a number of offences in the Children’s Court, all involving some form of violence. This is the first time he has been sentenced to imprisonment. The sentencing Judge found there was nothing in his criminal antecedents of particular significance to the proceedings.
The Judge referred to a number of psychiatrist reports prepared by Dr Raeside and Dr Hustig concerning the respondent’s background of developmental and behavioural problems. The respondent had come to the attention of Family and Youth Services in 1989 and was placed in foster care, and various boys homes but had at other times resided with his mother. He has never met his father. He was diagnosed with Attention Deficit Hyperactivity Disorder in 1994 and an antisocial personality disorder and conduct disorder in 2005. Dr Raeside concluded that this personality style occurs in the context of childhood abuse and neglect and poor educational and social opportunities.
It was not until 5 December 2005 that the respondent entered a plea of guilty. The plea came at a particularly late stage being the day of the trial and after his counsel had read victim impact statements to him. It was also at this time that he ultimately showed contrition for his actions.
Her Honour gave a discount of three months for the plea of guilty, saying:
[d]espite the lateness of the plea, I consider that you are entitled to a small discount on the penalty that I would otherwise have imposed as I am prepared to accept that you are now genuinely contrite and you have at least saved the Muller family the further distress of having to relive these traumatic events by having to give evidence about them at trial. [AB 62]
The Sentence Imposed
The Judge imposed one sentence of four years and three months for all of the offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (the “Sentencing Act”). Her Honour treated all offences as having occurred as one course of criminal conduct.
In taking into account the respondent’s age and future rehabilitation, the sentencing Judge imposed a lower non-parole period than usual, namely two years commencing on 26 February 2005. Reference was also made to programs such as anger management whilst the respondent is in prison in order to assist in his rehabilitation and “suitability for release back into the community”.
Principles to Apply in Applications for Leave to Appeal by the Crown
The principles which this Court must consider when deciding whether to exercise its discretion to grant the Crown leave to appeal against a sentence of imprisonment, are well established. The High Court has held that only in “rare and exceptional” cases should the Crown be given leave to appeal. These have been identified as; to establish a matter of principle; to correct an error of principle; to establish an appropriate standard for a particular kind of offending; or to correct a manifest inadequacy in a sentence which constitutes an “error in point of principle”. These principles have been applied and considered in a number of cases. [4]
[4] R v Wilton (1981) 28 SASR 362, 363; Everett v The Queen (1994) 181 CLR 295, 300 per Brennan, Deane, Dawson and Gaudron JJ; Elliot v The Queen (2001) 121 A Crim R 254, 257; R v Angus [2004] SASC 317.
In Everett v The Queen,[5] Mc Hugh J observed that the jurisdiction to hear a Crown appeal against sentence is conferred in order “that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing” which is “of great importance in maintaining confidence in the administration of justice in any jurisdiction”.[6]
[5] (1994) 181 CLR 295.
[6] (1994) 181 CLR 295 at 306.
Chief Justice King in R v Osenkowski[7] relevantly stated:
…The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual justices as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
[7] (1982) 30 SASR 212, 213.
In the more recent South Australian cases of R v Petroff,[8] R v Angus[9] and R v Nemer,[10] the Court has considered the relevant principles and observed that leave may be granted even if no general point of principle arises but the sentence is so far below the appropriate sentence “that to allow the sentence to stand would shake public confidence in the administration of justice”.[11]
[8] [2005] SASC 449.
[9] [2004] SASC 317.
[10] (2003) 87 SASR 168.
[11] R v Nemer (2003) 87 SASR 168, [23]-[24].
Submissions on Appeal
As previously indicated the DPP argued that the sentence imposed by the Judge was manifestly inadequate because it failed to adequately reflect important considerations for an appropriate sentence, namely, the criminality of the conduct; general and personal deterrence; and the aggravating features of the offending. It was also argued that the sentence failed to maintain adequate standards of punishment for offending of this nature and the Court should intervene to ensure standards are maintained.
It was submitted by the DPP that the sentence was manifestly inadequate and amounted to an error of principle in two ways. First, the failure to find that general deterrence and punishment “must always predominate” in the circumstances of the case and a failure to find that there was a “significant” need for personal deterrence in the circumstances of the case. Secondly, that the difference between the sentence imposed and that which ought to have been imposed was so great as to amount to an error in principle.
Turning first to the issue of general and personal deterrence and punishment.
General and Personal Deterrence and Punishment
Counsel for the DPP submitted that notwithstanding that general deterrence should have predominated in this case, the Judge failed to make any specific reference to general deterrence or indeed personal deterrence in the sentencing remarks. It was submitted that the only reference in the sentencing remarks to these topics were the conclusions by the Judge, after referring to the psychiatric reports and prior history, that the respondent was “a time bomb waiting to go off” and that as such he posed “a particular risk to the community”.
In part response to these points, counsel for the respondent submitted that the lack of specific reference to general and personal deterrence did not mean that the Judge did not consider these factors. That is certainly true and the DPP conceded as much.
In relation to the argument of the DPP that general deterrence and punishment “should always predominate” in circumstances such as this. All factors relevant to sentencing must be considered at all times and the appropriate weight to be given to the various factors will vary greatly in accordance with the case. In this case great weight should be given to the factors of punishment and general deterrence, but not so as to detract from other factors, such as matters of rehabilitation. It is always a matter of balance.
In considering the factors of general deterrence, personal deterrence and punishment, and the appropriate weight which should be given in this case, I start with the circumstances of the offending to which these factors relate.
The offences were serious. There were a number of aggravating features. Both the stabbing and the threats to Mr Muller and his family were unprovoked. Whilst the attack was not pre-meditated or pre-planned, it was a vicious attack which arose in response to a reasonable verbal remonstration by Mr Muller for the driver to slow down. The respondent deliberately took the knife out of the car and removed it from its sheath which can only have been for the purpose of threatening or using it on Mr Muller. The hunting knife was a highly dangerous weapon of between 15 to 20 centimetres in length. Even after stabbing Mr Muller the respondent continued to threaten to kill the victim and his family whilst waving the knife around.
The wound inflicted on Mr Muller was severe and life threatening. It was fortuitous that he survived. However, the fixing of a sentence does not depend solely on the consequences of the offence. The fact that Mr Muller survived does not detract from the seriousness of the offence and at the same time, it is important to note that the fact that the victim luckily did not die does not become a mitigating factor. It is usually the nature and circumstances of the offending and the risk of such injury which become the more important factors rather than the actual consequences.
The psychological effects on the victim and his family have been substantial. In the victim impact statements provided to the Judge, Mr Muller states that the injuries he sustained have reduced his physical strength, impacting greatly on his ability to work. He suffers from depression, anxiety and lack of sleep and this has affected his relationship with his children and his wife. Mr Mullers’ parents also provided statements to the Judge. Mr Mullers’ father stated that the incident has affected his ability to empathise with young offenders with whom he works as a senior social worker with the Department for Correctional Services and Mr Muller’s mother referred to watching her son nearly die and never thinking she would have to use her senior first aid certificate to save the life of her son.
Given the aggravating features of this case, there was a need to strongly reflect general deterrence and punishment in the sentence. Without digressing into sentencing philosophy the element of punishment is separately identified as a component of sentencing as is deterrence in s 10 of the Sentencing Act. Punishment has been recognised as having particular significance in relation to serious offences involving public safety offences in order to “mark the disapproval by the law of the conduct”.[12] At the same time there is an inter-connectedness between general deterrence and punishment.[13]
[12] R v Thompson (1975) 11 SASR 217, 222, 226.
[13] R v Williscroft [1975] VR 292.
In my view the need for punishment and general deterrence was important in this case given that violent offences arising out of the driving of vehicles are of concern to the public. The public have a right to be protected from reckless and dangerous driving and more particularly not to fear for their safety if they appropriately draw attention to such driving, as did the victim in this case. Although the respondent’s conduct may be characterised as an aspect of “road rage”, I do not think it is helpful to apply such labels. Ultimately the conduct and the surrounding circumstances are the most important aspects in the sentencing process. I consider, with due respect to the sentencing Judge, that the importance of this aspect of general deterrence does not appear to be adequately reflected by either the sentence or the sentencing remarks.
Considering now personal deterrence, the respondent’s criminal antecedent report in relation to crimes of violence referred only to assault occasioning actual bodily harm, and common assault committed in the year 2000. More importantly the psychiatric reports referred to episodes of violence when the respondent was a teenager and that his mother had borne the brunt of “rage attacks” which were often “unpredictable, violent outbursts”. The reports indicated that she had been the victim of threats as well as verbal and physical abuse for a number of years. The respondent also acknowledged this pattern of aggression in admitting to the psychiatrists, “once [I go] off my head I really go off” and “I get really violent”. There is also an opinion expressed by Dr Hustig that if the respondent was allowed to continue with this behaviour, he “would probably go on to develop a personality disorder and display entrenched violent behaviour”.
The DPP also drew attention to the respondent’s predisposition to engage in violence as a “particular risk to the community”. Protection of the public is a relevant factor in sentencing and the principle of proportionality dictates that:
the sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender. [14]
[14] Veen v The Queen (No 2) (1988) 164 CLR 465, 472.
I agree the consideration of protecting the public to be a specific factor to be weighed in sentencing the respondent and should be given appropriate weight along with the other aspect of personal deterrence.
There are also other aspects of the respondent’s behaviour after the commission of the offences which reflect on his attitude and the weight to be given to matters of personal deterrence. The respondent deliberately tried to avoid detection and took steps to minimise his involvement in the offences. He cleaned and hid the knife, changed his clothes, hid the car and then came up with a story about “Sam” being the actual perpetrator of the offences. He also later bragged to his friends about the stabbing.

Submissions were made on the respondent’s behalf to the effect that his behavioural problems coupled with his decision to drink after the incident, at least to some extent, explain this conduct and the slow progress to admitting his role and then acknowledging guilt and contrition. Whilst that may be a partial excuse, the conduct persisted over many months and is not persuasive in detracting from the need for the sentence to strongly reflect personal deterrence.
In order to emphasise the argument that the sentence was manifestly inadequate, counsel for the DPP submitted that the Judge placed too much weight on the respondent’s youth and the need for rehabilitation. This resulted in insufficient weight being placed on the maximum penalties and the other factors of the totality of the respondent’s conduct; the seriousness of the offences; the need for punishment; and general and personal deterrence as I have referred to earlier.
In response to these arguments counsel for the respondent referred to the respondent’s age, prospects for rehabilitation and his antecedents. These included childhood abuse and neglect, being subsequently placed in boy’s homes, poor educational and social opportunities and his diagnosed behavioural problems. Counsel submitted that the best protection for the community was the respondent’s reform and rehabilitation.
Notwithstanding the submissions by counsel for the respondent, in my opinion the gravamen of the case was the seriousness of the offending and the need for personal and general deterrence. While factors of youth and rehabilitation are clearly of importance in setting both the head sentence and the non-parole period, they are factors which are required to be balanced.
I consider that the failure to give adequate weight to the factors of punishment, general deterrence, and personal deterrence gave rise to a sentence which was manifestly inadequate, and for this reason I agree with the submission of the DPP that the failure to set a starting point over four years and six months amounted to an error of principle.
Adequacy of Sentence
The second argument of the DPP was that the difference between the sentence imposed and that which should have been imposed was so great as to amount to an error of principle.
The starting point for any sentencing process is to have regard to the maximum penalties for the offence under the Act. In this case the maximum sentences are life imprisonment for wounding with intent to do grievous bodily harm and ten years for threaten life.
Both counsel for the DPP and counsel for the respondent referred the Court to sentences imposed in other cases for the offence of wounding with intent to do grievous bodily harm. As the Court has observed on previous occasions, such comparisons are of limited assistance. The circumstances of the offending vary greatly. The personal circumstances of the offender also vary significantly. There is no standard punishment for this offending. In cases such as this in which a knife is used with intention to do grievous bodily harm, a lengthy custodial sentence must be considered. Sentences will vary according to the circumstances of the case such as the wounding, the use of a weapon, the type of weapon and the injury sustained.
As Doyle CJ observed in R v Nemer,[15] different outcomes in sentencing are due to the weight given to certain factors in individual cases. His Honour said at [8]:
That is why sentencing an offender is not a precise process. There is no sentence that is exactly right in a given case. In any particular case the most that can usually be said is that an appropriate sentence will be within a certain range. Any sentence within that range is appropriate. Different judges, presented with the one case, are likely to arrive at different results within that range. The different results do not indicate that an error has been made, as long as they are within the acceptable range. They reflect the nature of the sentencing process.
[15] (2003) 87 SASR 168.
The Court in R v Payne said at [66]:
We understand the desire to identify a benchmark sentence and the sort of case it applies to. But this will not remove the need for the individual assessment of each case, and for the making of what is always a difficult decision. The circumstances of the offences in question vary too much for the fixing of a benchmark to be wise or helpful. And, we repeat, it has not been shown that we should act as proposed because courts are not observing appropriate standards and need to be given a standard to work from.[16]
[16] (2004) 89 SASR 49.
I do not consider that this is an appropriate case to consider particular standards or range of sentences for a particular type of offending. I note, however, the significant community concern with regards to secondary violence that may arise in relation to the driving of motor vehicles.
In this case the commencing head sentence was four years and six months, which I consider to be far too low, given the importance of punishment, general deterrence and personal deterrence, even taking into account the mitigating factors of the respondent’s age and prospects of rehabilitation and his belated expressions of contrition. In my view a starting point should have been seven years as a single sentence for all offences. There is in my opinion such a disparity between the starting point of the sentencing Judge and what should be an appropriate sentence, that this amounts to an error of principle. These two errors lead me to the conclusion that this Court should grant leave to appeal and should intervene to re-sentence the respondent.
In re-sentencing I would start with a head sentence of seven years for all offences. I would reduce this by four months on account of the plea of guilty, bringing the total head sentence to six years and eight months.
As to the non-parole period, I note the observations of Sulan J in R v Dubois [17] at [27]:
The non-parole period must reflect the requirement of punishment and general and personal deterrence: see R v Power, Dinsdale v The Queen. In Davies’ case, Cox J made it clear that usually the non-parole period as well as the head sentence should reflect the gravity of the crimes. (citations omitted)
[17] (2004) 88 SASR 304.
In this case a non-parole period of less than fifty per cent of the head sentence was too low but a non-parole period of fifty per cent of the head sentence would have been appropriate. This in my view pays proper regard to the features referred to by the Judge, namely the respondent’s age and prospects of future rehabilitation.
Conclusion
The two errors of principle justify interference by this Court. I would therefore grant the application by the Crown for leave to appeal and allow the appeal for the purposes of setting aside the sentence of the Judge and substituting a single sentence of six years and eight months under s 18A of the Sentencing Act and making allowance for a four month reduction for the plea of guilty. I would impose a non-parole period of three years and four months representing half of the head sentence to commence 26 February 2005. I would also stress at this point the importance of the respondent continuing the anger management programs while in prison in order to maximise his rehabilitation and his eventual return into the community.