R v Maroroa

Case [2020] SASCFC 68

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MAROROA

[2020] SASCFC 68

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Nicholson)

16 July 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCING

Application for permission to appeal against sentence by the Director of Public Prosecutions (the DPP).

The respondent was charged with murder, to which he pleaded not guilty and the matter proceeded to trial before jury.  The jury found the respondent not guilty of murder, but guilty of manslaughter.

The respondent was sentenced to nine years imprisonment. A non-parole period of six years was fixed. The non-parole period fixed was less than the prescribed minimum, being four-fifths of the head sentence, after the sentencing Judge found special reasons in accordance with ss 48(2)(b) and 48(3)(a) of the Sentencing Act 2017 (SA) (“the Sentencing Act”) for fixing a non-parole period that was shorter than the prescribed period.

The DPP now seeks permission to appeal on two grounds:

1.  That the sentence imposed by the Judge was manifestly inadequate; and

2.  That the Judge erred in finding special reasons warranting a non-parole period of less than four-fifths of the head sentence.

Held per Kelly J (Peek and Nicholson JJ agreeing), refusing permission to appeal on ground 1:

1.  The uncertainty of the factual circumstances here surrounding the actual commission of the crime is a factor which militates against permission being granted (at [35]).

2.  Although a head sentence of nine years is low, the sentence is not so manifestly inadequate as to require this Court’s intervention (at [36]).

Held per Kelly J (Peek and Nicholson JJ agreeing) in relation to ground 2:

1. For a judge to reach the state of satisfaction required under s 48(2)(b) of the Sentencing Act there must be some proper factual basis on which the conduct of both the victim and the offender can be evaluated (at [41]).

2. There was nothing in the proven circumstances surrounding the commission of this offence on which the Judge could have been satisfied in accordance with the requirements in ss 48(2)(b) and 48(3)(a) of the Sentencing Act that there were special reasons to depart from the minimum mandatory non-parole period (at [81]).

3. Even if there had been a proper basis to find special reasons, none of the circumstances referred to by the Judge warranted the exercise of the discretion in s 48(3) of the Sentencing Act (at [82]).

Held per Nicholson J (Peek J agreeing), refusing permission to appeal on ground 2:

1.  The imposition on appeal of the correct non-parole period is not required, in order to give proper guidance to other courts or otherwise to satisfy the purposes of a successful prosecution appeal (at [95]).

2.  The prosecution has not established sufficiently…

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R v Maroroa [2020] SASCFC 68
Case
[2020] SASCFC 68
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions, as the appellant, sought permission to appeal against a sentence imposed on the respondent for a homicide offence. The appeal was based on two grounds: first, that the sentence was manifestly inadequate, and second, that the sentencing judge erred in finding special reasons to impose a non-parole period of less than four-fifths of the head sentence. The case was heard by Kelly, Peek, and Nicholson JJ.

The central legal issues before the court were whether the imposed sentence was demonstrably too lenient and, more significantly, whether the sentencing judge had correctly applied the provisions of the *Sentencing Act 2017* (SA) regarding the mandatory minimum non-parole period for serious offences against the person. This involved determining if the judge had properly considered the "matters of mitigation" required to justify a non-parole period below the statutory four-fifths threshold.

Kelly J, in her reasons, agreed that the sentence was not manifestly inadequate but found an error in the sentencing judge's determination of special reasons for a reduced non-parole period. She concluded that the respondent had not discharged the onus of proving such mitigating circumstances as required by the *Sentencing Act*. Consequently, she would have granted permission to appeal on the second ground and imposed a non-parole period of seven years, two months, and 11 days, representing four-fifths of the head sentence. Peek J agreed with Kelly J that the sentence was not manifestly inadequate but expressed some reservations about specific factual inferences drawn by Kelly J. Peek J also agreed that there was an error in the sentencing judge's consideration of the respondent's evidence regarding mitigation, which failed to meet the statutory requirements. However, Peek J ultimately refused permission to appeal on both grounds, suggesting the error could be addressed without a full appeal. Nicholson J agreed with Kelly J's analysis of principle and her refusal of permission on the first ground. While acknowledging the difficulty of the second ground, Nicholson J also agreed that the head sentence was substantial and that the non-parole period, save for the mandatory requirement, adequately addressed the sentencing considerations. Nicholson J ultimately agreed with Peek J's conclusion to refuse permission on both grounds.

The majority decision was to refuse permission to appeal on the first ground, that the sentence was manifestly inadequate. On the second ground, concerning the non-parole period, Peek and Nicholson JJ agreed to refuse permission to appeal, differing from Kelly J's view that the appeal should be allowed. Therefore, the outcome was that permission to appeal was refused on both grounds.

Orders

Orders of the court

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Background

Background to the litigation

The Director of Public Prosecutions (“the appellant”) now seeks permission to appeal on two grounds. The appellant asserts that the sentence imposed by the sentencing Judge was manifestly inadequate (ground 1), and that the Judge erred in finding special reasons warranting a non-parole period of less than four-fifths of the head sentence (ground 2).Background On 13 January 2000, in the early hours of the morning, the respondent and the deceased were at the Gull Rock carpark near Maslin Beach. The deceased was seated in his car in a t-shirt and his underpants. The respondent approached the deceased. The deceased reacted to the respondent’s approach in a manner that resulted in the two engaging in a physical altercation. During the course of that altercation, the respondent fired three shots from a Boito shotgun towards the deceased, two of which hit him at a close range. One of the projectiles wounded the deceased’s right forearm. The other, dubbed the “fatal shot” by the forensic pathologist, wounded his upper left chest area and ruptured his axillary artery. The respondent did not attempt to render any assistance to the deceased after he shot him. Rather, he fled the scene in the deceased’s vehicle. The respondent crashed and abandoned the vehicle. He discarded the shotgun, along with his blood-stained jacket, in the paddock of a private property near Port Willunga. He later disposed of several other items, including blood-stained jeans, a towel, and ammunition, by placing them inside a shotgun bag and tossing the bag into the ocean. At about 1.29 am, ambulance officers attended the scene after receiving a call from a member of the public. The officers located the body of the deceased at the northern end of the carpark. The deceased was found lying on his back over a speed hump. His limbs were spread apart and his genitals were exposed. He was wearing a black shirt, which had been torn in the front, along with a pair of black underpants that were strung around his ankles. A considerable amount of blood was present around, and covering, his body. The crime scene examiner located a trail of blood throughout the carpark and the adjacent grassland. The examiner noted transfer bloodstains from a left foot. The bloodstain pattern indicated that the deceased had run from the grassland near the western side of the carpark across the carpark in a south-easterly direction, had curved back in a north-westerly direction, and then proceeded north where his body was found. Following a post-mortem examination, the pathologist observed that the deceased had sustained the following notable injuries: a shotgun wound to the left side of his chest with lacerations to his axillary artery; a shotgun wound to his right forearm; a laceration to the right side of his forehead; and a minor abrasion to his right knee. It was impossible to determine the sequence of injuries on the basis of the post-mortem findings alone. The deceased’s death was attributed to the loss of blood caused by the shotgun wound to his upper left chest. The pathologist noted that the laceration of the axillary artery would not have resulted in instantaneous death. Rather, it would have taken at least several minutes until the deceased had lost enough blood so as to cause him to go into cardiac arrest. Importantly, the deceased may have survived if prompt medical attention had been sought following this injury.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J
In these circumstances, I consider that this Court would not be fulfilling its duty upon a prosecution appeal to leave the non-parole period uncorrected. Conclusion For these reasons, I would refuse permission to appeal in respect of ground 1; however I would grant permission to appeal in respect of ground 2 and allow the appeal. I would impose a non-parole period of seven years, two months and 11 days, being four-fifths of the head sentence. PEEK J: I have read the Judgments of Kelly J and Nicholson J. I agree with the decision of Kelly J that permission to appeal should be refused on proposed ground 1 of appeal (asserting that the sentence was manifestly inadequate) and have nothing to add. As to proposed ground 2 (concerning s 48 of the Sentencing Act 2017), I generally agree with the approach of Kelly J (except perhaps for some particular factual inferences that her Honour draws). In particular, I consider that there was an error by the trial Judge in that his Honour failed to give adequate consideration to the necessity for the defendant to prove what amounted to “matters of mitigation” within the meaning of such decisions of the High Court as R v Olbrich,[25] Weininger v The Queen[26] and Filippou v The Queen;[27] as well as various decisions of this Court.[28][25] (1999) 199 CLR 270. [26] (2003) 212 CLR 629.[27] (2015) 256 CLR 47.[28] Such as MJDH v Director of Public Prosecutions(SA) (2013) 116 SASR 180 and R v Kreutzer (2013) 118 SASR 211. The defendant gave evidence before the jury, but did not give additional evidence before the Judge on the sentencing hearing. His Honour rejected large parts of the defendant’s evidence before the jury and, in my view, the effect of such rejection was that the defendant did not discharge the onus upon him to satisfy the requirements of s 48(2)(b) and s 48(3)(a) of the Sentencing Act 2017. And that was the only way by which he could avoid the mandatory non-parole period of (at least) 80% of the head sentence. However, a sentence of nine years imprisonment with a non-parole period of six years is a substantial sentence; and no member of the coram suggests that it is manifestly inadequate in all of the circumstances here. Although I admit to some vacillation, I conclude that the error to which I have referred can be adequately addressed in the way suggested by Nicholson J. I agree with his Honour that it is not necessary in this case to allow a prosecution appeal to make that error plain. I would therefore refuse permission on both of the proposed Grounds of Appeal. NICHOLSON J: I agree with the analysis of principle provided by Kelly J and, but for her Honour’s final conclusion with respect to ground 2, her Honour’s application of principle to the facts of this matter. I would refuse permission to appeal on ground 1 for the reasons Kelly J has given. Ground 2 presents greater difficulty. On the assumption that the head sentence of nine years is to remain undisturbed, I am satisfied that the non-parole period of six years fixed by the Judge adequately addresses the various considerations that underlie the setting of a non-parole period, save for that which, ordinarily, is required by the terms of subsection 47(5)(d) and section 48 of the Sentencing Act 2017 (SA).[29] [29] Section 48 is set out in Kelly J’s reasons; subsection 47(5)(d) is in these terms: (d) if fixing a non-parole period in respect of a person sentenced to imprisonment for a serious offence against the person, the mandatory minimum non-parole period prescribed in respect of the offence is four-fifths the length of the sentence.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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