SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MARRONE
[2011] SASCFC 78
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Peek)
29 July 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - RESTITUTION OR REPARATION
Appeal against sentence imposed for offences of causing harm with intent to cause harm and assault - head sentence and non-parole period said to be manifestly excessive - whether sentencing judge erred in placing too much emphasis on appellant's inability to provide compensation to victim - whether judge erred in failing to give credit for time on home detention - whether judge failed to take into account adequately appellant's personal circumstances, including welfare of his children.
Held: sentence not manifestly excessive - appeal allowed for limited purpose of re-arranging sentence.
Criminal Law Consolidation Act 1935 (SA) s 21, s 23(3), s 24(1); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(f), 18A, referred to.
R v Wirth (1976) 14 SASR 291, considered.
R v MARRONE
[2011] SASCFC 78Court of Criminal Appeal: Doyle CJ, Vanstone and Peek JJ
DOYLE CJ: I agree with the orders proposed by Vanstone J and with her reasons for making those orders.
VANSTONE J: The appellant pleaded guilty in the District Court to causing harm with intent to cause harm (count 1) and assault (count 2), committed upon separate victims. The offences occurred on 26 January 2008. The offending was a breach of his parole, the unexpired balance being a period of more than 30 months. One sentence for the two offences was imposed. The sentence was approached in this manner. The judge took as a starting point a sentence of seven years imprisonment, then reduced it to five years and four months to reflect the pleas of guilty. The unexpired parole was next added to the provisional total, and then time spent in custody of one year, ten months and nine days was subtracted. That left an actual head sentence of six years and 21 days. The provisional non-parole period of six years was similarly reduced for the time in custody, leaving a period of four years, one month and 21 days.
On appeal it is argued that the head sentence and non-parole periods are manifestly excessive. It is put that the sentencing judge placed too much emphasis on the asserted inability of the appellant to provide compensation to the victim of count 1, that the judge failed to give credit for some 16 months spent on home detention bail and that the sentence failed to adequately reflect the appellant’s personal circumstances, particularly the effect of imprisonment on the welfare of his six children.
Background
The facts of the offending, as found by the learned sentencing judge, are as follows. Between 4 and 5 am on Australia Day 2008…
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- R v Marrone [2011] SASCFC 78
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- [2011] SASCFC 78
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CaseChat Overview and Summary
The legal issues before the court were whether the sentencing judge had erred by placing undue emphasis on the appellant's inability to provide compensation to the victim, failing to grant credit for approximately 16 months spent on home detention bail, and inadequately considering the appellant's personal circumstances, particularly the welfare of his children.
The court found that the sentence was not manifestly excessive. It reasoned that the terms of the home detention bail were not onerous, and the appellant had abused drugs during that period, thus the judge was not obliged to give credit for it. The court also noted that all the appellant's submissions had been carefully considered by the sentencing judge, and that the starting point for the sentence reflected the seriousness of the offences, the fact that the appellant was on parole at the time, and the breach of parole and home detention bail cast doubt on his rehabilitation prospects. While acknowledging factors that told in the appellant's favour regarding the non-parole period, the court ultimately found the sentencing judge's discretion had not been exceeded.
Although the appeal was dismissed in relation to the severity of the sentence, it was allowed for the limited purpose of re-arranging the sentence. The court identified an unsatisfactory aspect in how the sentencing judge had subtracted time spent in custody from both the head sentence and non-parole period, which had the effect of obscuring the quantifiable head sentence for the current offences. The court proposed to rearrange the sentence to ensure the head sentence remained identifiable while still giving the appellant the full benefit of time spent in custody.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
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Decision
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