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.

1. This is an appeal against sentence.

   Background

2. 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. 

3. 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.” 

4. 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. 

5. 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. 

6. 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. 

7. The defendant’s criminal antecedents include several serious offences committed as a young offender.  As an adult offender, his crimes include motor vehicle offences and minor drug offending.  In 2006, he was given a short suspended term of imprisonment. 

8. When sentencing, the Judge noted that the maximum sentence for aggravated threatening harm was imprisonment for 7 years and for the offence of threatening to damage property was 5 years.  The Judge described the offending conduct as being “undoubtedly serious”.  The Judge then concluded his remarks as follows:

   I will fix one sentence to cover both of your crimes and you will be imprisoned for one year and nine months. But for your pleas it would have been two years six months. I fix a non-parole period of four months.

   The seriousness of your crimes and the need to deter others outweighs the combined effect of the various considerations which operate in your favour and good reason to suspend your sentence thus does not exist.

   Both the sentence and the non-parole period will commence today.

   The Appeal

9. On the appeal, it was submitted that the Judge erred in declining to exercise his powers under section 38 of the Criminal Law (Sentencing) Act 1988 (SA) to suspend the term of imprisonment. That subsection relevantly provides:

   (1) Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—

   (a)     to be of good behaviour; and

   (b)     to comply with the other conditions (if any) of the bond.

   ...

   (2c)If the court suspends a sentence of imprisonment under this section on the ground that, because of the defendant's ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison, the court may, in addition to any other conditions included in the bond, include a condition (a home detention condition) requiring the defendant to reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one of the following purposes:

   (a)     remunerated employment;

   (b)     necessary medical or dental treatment for the defendant;

   (c)     averting or minimising a serious risk of death or injury (whether to the defendant or some other person);

   (d)     any other purpose approved or directed by the community corrections officer to whom the defendant is assigned,

   (and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period).

10. In O’Toole, Peek J, with whom Sulan J agreed, considered section 38(1) of the Sentencing Act and said:[1]

    This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences.  The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.  It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.   The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.

    [Footnotes omitted.]

    [1]    R v O’Toole [2013] SASCFC 18, [50].

11. Counsel for the defendant submitted that authorities relevant to the application of section 38(2c) of the Sentencing Act include Godwin,[2] Ireland[3] and McLean.[4]  Particular reference was made to the following remarks of White J in Ireland:[5]

    Subsection (2c) may also be regarded as enlarging the circumstances in which a court may find good reason to suspend in those cases in which the ill health or physical condition of a defendant would make it harsh for the defendant to serve any time in custody. That is because the ability to impose a home detention condition, may, by itself, contribute to the circumstances amounting to good reason to suspend the sentence. That is to say, subs (2c) operates in a composite way, as opposed to having effect only once the decision to suspend has been made.

    [2]    R v Godwin (2001) 80 SASR 195.

    [3]    R v Ireland (2012) 114 SASR 438.

    [4]    R v McLean (2013) 118 SASR 280.

    [5]    R v Ireland (2012) 114 SASR 438, [45].

12. Counsel submitted that the psychiatrist, Dr Begg, was of the view that, if the defendant were to be immediately imprisoned, it could be expected that his autism and social anxiety would make it more likely that he would come into conflict with other prisoners, that his anxiety would deteriorate, that there would be a significant risk that he would become depressed and that, if this were to occur, a cumulative effect would be a return to his post-traumatic stress disorder.  It was complained that the Judge erred in his conclusion that the seriousness of the crimes and the need to deter others outweighed the combined effect of the considerations that operated in the defendant’s favour and that, as a consequence, good reason to suspend the sentence did not exist. 

13. Counsel acknowledged that the question of the application of section 38(2c) was raised during sentencing submissions.  However, it was pointed out that the Judge made no express reference to the section in his sentencing remarks.  It was submitted that the Judge failed to have regard to the difficulty in deterring persons with the mental conditions suffered by the defendant.  Reference was made to the following observations of Doyle CJ in Prak:[6]

    It is well established that individual deterrence and perhaps general deterrence may be less significant in the case of an offender suffering from a mental illness. But in my opinion a normal approach to sentencing should be taken where there is no link between the mental condition and the commission of the offence.

    [6]    R v Prak (Unreported, Court of Criminal Appeal, SA, Doyle CJ, Cox and  Bollen JJ, 16 July 1996), 2.

14. Counsel for the Director of Public Prosecutions pointed out that, during the sentencing process, the proceeding was twice adjourned to give the defendant the opportunity to provide further information concerning the effect that imprisonment may have on him.  The Judge was plainly aware of the issue.  Following these adjournments, Dr Begg’s reports were tendered and discussed during the course of sentencing submissions. 

15. The Director submitted that, in accordance with recent authority, as no sentencing error had been shown on the part of the Judge and as the sentence imposed was not so unjust so as to indicate a sentencing error, the Judge’s discretion could not be interfered with.  It was said that there was nothing in the remarks of the Judge to suggest error.  It was submitted that, while there is no requirement that a court expressly refer to every sentencing option or aspect of the sentencing process in the sentencing remarks, the Judge had referred to the issue of the defendant’s mental illness.  The Judge’s finding that the defendant’s moral culpability was less than it may otherwise have been did not remove general deterrence as a consideration in the sentencing process.  The defendant’s mental conditions did not materially impact on his ability to understand or appreciate the wrongfulness of his actions.  It was pointed out that the defendant not only threatened the victim, he did so with a large machete.  His intention in threatening the victim with a weapon was to frighten and alter the behaviour of his neighbour.  He understood the use of a machete was more likely to achieve the result he wanted.  The defendant left the driveway to go inside to arm himself with a weapon.  This was a calculated act.  The defendant was able to understand the impact such an act may have.  It was further submitted that the defendant’s mental health did not diminish the need to protect the community or deter the appellant from such acts.  Spontaneous acts of violence as a result of poor impulse control are commonplace.  The dramatic consequences of such acts were well illustrated by the impact on the victim and his family.  It was argued that it was open to the Judge to decline to suspend the sentence, notwithstanding that the balancing exercise may have resulted in a different decision by another Judge.

16. 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

17. 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.

18. 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. 

19. We dismiss the appeal.