R v Manhire - [2015] SASCFC 187

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MANHIRE
[2015] SASCFC 187
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Blue and The Honourable Justice Nicholson)
11 December 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
Appeal against sentence. The appellant pleaded guilty to aggravated threatening to cause harm and threatening to damage property. The one sentence of imprisonment of 1 year and 9 months was imposed in respect of both offences. A non-parole period of 4 months was fixed. The Judge declined to suspend the sentence. The circumstances of the offending were as follows. The appellant had been playing loud music for a number of hours. The appellant’s neighbour called the police, who attended at the appellant’s house and spoke to the appellant about the music. Immediately after the police left the appellant’s home, he went outside and expressed to his neighbour his anger that the police had been called. He then went back into the house and returned carrying a machete with a 50 centimetre blade, yelling to his neighbour “I will cut your fucking head off, cut your limbs off... I will kill your wife, I will burn your house down and I will kill your kids.” The offending had a significant impact on the victim and his family – they immediately sold their house and suffered significant stress and anxiety. The appellant had mental health conditions including anxiety and autism. Medical evidence before the sentencing Judge suggested that the appellant may find imprisonment more difficult and there was a risk that his mental health would deteriorate.
Whether the Judge’s discretion not to suspend the sentence miscarried.
Held per the Court (dismissing the appeal):
1. The Judge’s discretion not to suspend the sentence did not miscarry.
Criminal Law (Sentencing) Act 1988 (SA) s 38(1) and s 38(2c), referred to.
R v O’Toole [2013] SASCFC 18; R v Godwin (2001) 80 SASR 195; R v Ireland (2012) 114 SASR 438; R v McLean (2013) 118 SASR 280; R v Prak (Unreported, Court of Criminal Appeal, SA, Doyle CJ, Cox and Bollen JJ, 16 July 1996), considered.

R v MANHIRE
[2015] SASCFC 187
Court of Criminal Appeal: Gray, Blue and Nicholson JJ
THE COURT.

This is an appeal against sentence.
Background
On 19 October 2015, the defendant and appellant, Jason Jeffrey Manhire, was sentenced in the District Court following his pleas of guilty to the offences of aggravated threatening to cause harm and threatening to damage property. The one sentence was imposed in respect of both offences, namely a term of imprisonment of 1 year and 9 months. But for his pleas, the Judge would have imposed a sentence of imprisonment of 2 years and 6 months. The Judge fixed a non-parole period of 4 months.
The offending arose out of a dispute between the defendant and his neighbours on…

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.

Continue reading R v Manhire

Details

AGLC: R v Manhire [2015] SASCFC 187
Case: [2015] SASCFC 187
Decision Date: 11 December 2015

CaseChat Overview and Summary

The appeal concerned the sentence imposed on Jason Jeffrey Manhire by the District Court. Mr. Manhire had pleaded guilty to aggravated threatening to cause harm and threatening to damage property. The sentencing judge imposed a single term of imprisonment of 1 year and 9 months, with a non-parole period of 4 months, and declined to suspend the sentence. The offences arose from an incident where Mr. Manhire, after being spoken to by police about loud music, emerged from his home with a machete and made severe threats of violence towards his neighbour and the neighbour's family, including threats to kill and burn down their house. The victim and his family suffered significant stress and anxiety, leading them to sell their home. Mr. Manhire had a history of mental health conditions, including anxiety and autism, and medical evidence suggested imprisonment might be more difficult for him.

The legal issues before the appellate court were whether the sentencing judge erred in imposing the sentence of imprisonment, in fixing the non-parole period, and in declining to suspend the sentence, particularly in light of Mr. Manhire's mental health conditions and the impact of his offending on the victims. The court was required to consider if the sentence was within the judge's discretion, if any material considerations were overlooked or irrelevant considerations were taken into account, and if the sentence was plainly unjust.

The court found no error in the sentencing judge's decision. It reasoned that the sentence imposed was within the judge's discretion, noting that the offending was serious, involving threats with a large machete calculated to cause significant fear, and that the consequences for the victims, including their decision to sell their home, were severe. The court considered general deterrence to be an important factor, even given Mr. Manhire's low intellect and autism. The non-parole period was described as "very merciful," suggesting the judge had given particular regard to Mr. Manhire's personal circumstances. The court also noted that the judge had addressed the potential difficulties Mr. Manhire might face in prison, and that prison authorities could be expected to provide appropriate care and protection. The court concluded that the sentence was not plainly unjust and that the judge's discretion not to suspend the sentence had not miscarried.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against sentence.Background On 19 October 2015, the defendant and appellant, Jason Jeffrey Manhire, was sentenced in the District Court following his pleas of guilty to the offences of aggravated threatening to cause harm and threatening to damage property. The one sentence was imposed in respect of both offences, namely a term of imprisonment of 1 year and 9 months. But for his pleas, the Judge would have imposed a sentence of imprisonment of 2 years and 6 months. The Judge fixed a non-parole period of 4 months. The offending arose out of a dispute between the defendant and his neighbours on 11 December 2014. There had been previous disagreements between them. On this occasion, the defendant had been playing loud music from about 2.00 pm. At about 9.00 pm, the victim’s partner rang the police as their children were having trouble going to sleep. The police attended at about 9.30 pm, spoke to the defendant and then left. Almost immediately after the police left, the defendant turned the volume back up again. The defendant then went outside and began banging on the fence between the two properties. He was yelling for his neighbour, the victim, to come out. The victim went outside and the defendant expressed his anger that the police had been called. The defendant then went inside his home and immediately returned, carrying a machete with a 50 centimetre blade. The defendant shouted, inter alia, “I will cut your fucking head off, cut your limbs off.” He also said “I will kill your wife, I will burn your house down and I will kill your kids.” As a consequence of the defendant’s conduct, the victim and his family suffered from stress and anxiety. The victim’s son, in particular, was severely traumatised by the incident. The victim’s wife, who witnessed her husband being threatened with the machete and heard the threat to the family and to the family home, became particularly anxious. The victim and his wife made almost immediate arrangements for the sale of their property. By mid-January 2015, their house was on the market. The property was sold. Settlement was effected in April 2015 and the family moved. The victim suffered financial loss as a result of the immediate sale of the property. At the time of sentencing, the defendant was aged 31 years. He suffers from anxiety and has been on a disability support pension for his entire adult life. Following the offending, the defendant’s partner left and the defendant’s parents have lived with him and assisted in caring for his children. The defendant has a long history of mental ill-health and has been diagnosed at times as suffering from a number of disorders. Some years earlier, he had been violently assaulted and, as a result, developed a post-traumatic stress disorder. This disorder had resolved prior to December 2014. Psychiatric reports before the sentencing Judge by Dr Begg included the opinion that the defendant, at the time of sentencing, suffered from autism and social anxiety. It was noted that the defendant was of “low normal” intelligence. Apparently, the defendant’s autism results in the defendant having a poor capacity to relate to others, particularly when intoxicated. It would lead the defendant to act without appreciating the impact of his conduct on others. The psychiatrist expressed the view that imprisonment would not, of itself, lead to a deterioration of the defendant’s mental health, but that he would be likely to find imprisonment more difficult and that the burden of imprisonment would be greater because of his problems.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Director submitted that the psychiatric reports suggested that the defendant would adapt after a period of weeks of imprisonment. It was contended that the evidence before the Judge did not indicate that the defendant would find imprisonment unduly harsh and, more importantly, there was no evidence that the defendant could not be adequately cared for in prison. Conclusion No error of sentencing principle has been identified on the part of the Judge. It is not suggested that any material consideration has been overlooked. It is not suggested that regard has been had to any irrelevant consideration. The sentence of imprisonment imposed was well within the sentencing discretion of the Judge. The non-parole period was, on any view, very merciful. It would appear that the Judge had particular regard to the personal circumstances of the defendant and his low intellect and his poor mental health when setting a very short non-parole period. The problems the defendant might encounter in prison were addressed by the Judge. As pointed out, the prison authorities could be expected to take appropriate steps and put in place appropriate measures to ensure that the defendant is properly protected while in custody. We do not consider that it could be said that the sentence imposed was plainly unjust. We do not consider that it has been demonstrated that the Judge’s discretion not to suspend the sentence has miscarried. The defendant’s offending was serious. To threaten his neighbour with a large machete was calculated to cause fear to the neighbour for his safety and, more particularly, for the safety of his family and his home. The consequences to the defendant’s neighbours were very serious. Their decision to immediately sell their home and move demonstrates the level of anxiety and stress to which they were exposed. General deterrence was an important consideration, notwithstanding that the defendant was of low intellect and suffered from autism. We dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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