R v Marrone

[2011] SASCFC 78

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 78

Court of Criminal Appeal:  Doyle CJ, Vanstone and Peek JJ

1. DOYLE CJ:          I agree with the orders proposed by Vanstone J and with her reasons for making those orders.

1. 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.

2. 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

3. The facts of the offending, as found by the learned sentencing judge, are as follows.  Between 4 and 5 am on Australia Day 2008 the appellant went to the Eureka Tavern at Salisbury.  He was seen to be making aggressive remarks to others and offering to fight them.  When a female patron suggested he settle down, he threatened to “smash” her.  The victim of count 1, Mr Croad, spoke to him and he elbowed or punched him in the head, causing him to fall.  The appellant then left the hotel.  A few minutes later he returned and was again inviting others to fight him.  The victim of count 2 was playing pool.  The appellant claimed he inadvertently bumped into her whereupon she spoke to him.  He then assaulted her by head butting her or punching her in the face, causing her to fall backwards.  She suffered pain, bruising and headaches as a result.

4. The appellant then went outside and again confronted Mr Croad.  He ultimately elbowed or punched him in the head causing him to fall backwards, this time onto a sign.  He then punched Mr Croad again, knocking him to the ground.  On the way down Mr Croad’s head hit a veranda post, then made heavy contact with the concrete ground.  He suffered convulsions and was rendered unconscious.  First aid was administered to him and he was rushed to hospital.  Meanwhile, the appellant left the beer garden and was followed by others who fought with him and restrained him, before he was arrested by police.

5. At the Lyell McEwin Hospital the victim was found to be in a very serious condition.  He had closed head injuries which had bled and which led to recurrent seizures, which were life-threatening and which led to a deterioration of cognitive functioning.  Upon discharge he was transferred to the Hampstead Rehabilitation Centre where he remained for some six months.  He now lives with his brother who provides him with full time care.  He is unable to look after himself in any way at all.  He is unable to read or write and his speech is impaired.  He also is partially blind.  It is likely that the following factor contributed to the dire effects of the incident.  There was a history of a previous traumatic head injury whilst intoxicated, leading to a seizure and an admission to the Royal Adelaide Hospital in 1991.  The 2008 injuries included trauma to a similar part of the victim’s brain.  It was accepted, though, that the 2008 assault and the “structural brain damage sustained … significantly contributed to the focal epilepsy and residual neurological deficits suffered by the victim”.  Also, he was found at the hospital to have a grossly elevated blood alcohol level and withdrawal might have contributed to seizures suffered after the offence.

6. It is noteworthy that when the appellant first appeared in the District Court the assault upon Mr Croad was charged as an offence of recklessly causing serious harm, contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (the Act). Such an offence, in its basic form, carries a maximum sentence of imprisonment for 15 years. The expression “serious harm” is defined in s 21 of the Act as follows:

   21—Harm

   …

   serious harm means—

   (a)     harm that endangers a person's life; or

   (b)     harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or

   (c)     harm that consists of, or results in, serious disfigurement.

   The later acceptance by the Director of Public Prosecutions of the appellant’s plea of guilty to causing harm with intent to cause harm, contrary to s 24(1) of the Act, meant that the allegation that serious harm had been caused was abandoned; although at the same time, the final charge alleged an intention to cause harm, as opposed to recklessness. The maximum penalty for an offence against s 24(1) in its basic form is 10 years imprisonment.

7. Even from the limited material which I have recounted going to the injuries suffered by Mr Croad, it can be seen that, as a matter of fact, serious harm as defined was indeed sustained.  However, the prosecution’s abandonment of that allegation meant that the judge was obliged to sentence on the basis that the harm sustained fell short of serious harm.  The judge specifically noted this matter.  She said:

   While it is entirely a matter for the prosecution as to what charges were laid I note that the charges changed after some negotiations and the charges that you have pleaded guilty to do not include any allegation that serious harm was caused. There is no doubt that serious harm was caused in this case although I accept that you did not intend to actually cause that level of harm. The maximum penalty for the offence that you pleaded to is a great deal lower than that for the original charge, now being a maximum of 10 years imprisonment for the first charge.

   The judge further said:

   I note, however, that you are not charged with an offence of causing serious injury but rather that you are charged with a charge of causing harm with intent to cause harm. Nonetheless it must be said that this is a very serious example of an offence of this type.

   Part of the complaint of the appellant is that, despite making this observation, the judge sentenced on the basis that serious harm was caused.

   Arguments on appeal

8. I propose to deal in turn with the contentions put in support of the argument that the head sentence and non-parole period are manifestly excessive.

9. As I mentioned, the appellant argues that despite the judge adverting to the essential differences between the original and the reduced charges, the sentencing remarks, read as a whole, suggest that her Honour took the view that the appellant was morally culpable for the entirety of the injuries.

10. It is true that in comprehensive sentencing remarks the judge gave some detail of the injuries sustained by Mr Croad.  This material included, but was not confined to, relevant matters set out in a statement of agreed facts which was provided to the judge.  It was observed that the seizures were of long duration and were life-threatening.  The extent of the victim’s incapacity and the level of care now required by him were described.  His poor prognosis was outlined.  The judge observed that the appellant was the “substantial cause of a very significant permanent brain injury” prior to alluding to the downgrading of the charge and its significance, as I have already set out.

11. In my view there are difficulties with this argument.  The judge cannot be criticised for setting out in broad terms the entirety of the victim’s injuries.  The plea of guilty to the lesser charge did not change the nature of the injuries actually sustained, or their categorisation.  As seen, the judge correctly adverted to the fact that there was no allegation that the appellant intended to cause serious harm as defined;  neither was there any longer an assertion that the appellant was to be sentenced for causing serious harm.  On the face of it, the rational explanation for the downgrading of the charge would appear to be an acceptance by the prosecution that, perhaps due to the extremely high alcohol level of the victim or his previous injury, the appellant’s actions might not have been a substantial cause of the whole of the injuries.  However, the drafting of the agreed facts seems to go against that rationale.  In any event, the judge was left with the task of sentencing for the particular offence which the appellant had acknowledged committing.  In the face of her clear acknowledgment of the distinctions between the original charge and the final charge, the complaint that the penalty reflected the more profound injuries can only be evaluated by examining the sentence imposed.

12. Complaint was made both about the “starting point” taken by the judge and also the non-parole period.  In support of the argument that the head sentence was too high the Court was asked to consider a number of sentences imposed in the District Court for this type of offence, or for comparable offences.  We were also provided with sentencing remarks in relation to such offences.  I have not been assisted by this material.  Offences of causing harm with intent vary as much in their nature as do the backgrounds and circumstances of persons who commit them.  As seen, the level of harm sustained by Mr Croad must be taken to be as serious as it could be, short of answering the definition of the serious harm in the Act.  In addition, as I have said, the sentence here was imposed not only for count 1, but also for the separate assault against the female patron.  There was another significant matter of aggravation to which I shall come.

13. In an argument particularly directed to the level of non-parole period imposed, it was argued that while alcohol abuse and drug use could not mitigate the crimes, where those matters were or were likely to be addressed, the prospects of rehabilitation were enhanced.  Evidence given before the judge showed that the appellant would have significant assistance in his quest to overcome his addictions and that there was good reason to anticipate that he would succeed.  Dr Raeside expressed the view that while the appellant had underlying anti-social personality traits, these appeared to be mellowing with advancing age.  He considered the appellant would benefit from appropriate drug and alcohol programs to “assist him to look at more adaptive ways of dealing with stress than resorting to ongoing substance abuse”.  He said that the appellant’s “overall prognosis looks positive”.  There was material to demonstrate that the appellant had attended relapse prevention programs while in custody after his bail was revoked.  It is relevant to examine something of the appellant’s history in terms of drug use.

14. On 17 March 2006 the appellant had been sentenced in the District Court for possessing cannabis for sale, producing cannabis, possessing amphetamines for supply and unlawful possession.  He received a sentence of four years six months imprisonment with a non-parole period of 18 months.  He was released on home detention late in December of the same year and commenced parole on 16 September 2007, that is about four months before committing the current offences.  The judge was provided with the sentencing remarks relevant to the earlier matters.  It was apparent that the low non-parole period there imposed was referable particularly to the likely effect of a long sentence of imprisonment upon the appellant’s family, being his wife and four children, as well as a submission made to the judge that the appellant’s addiction to drugs had been overcome.

15. However, before the judge under appeal it was suggested that later there had been breaches of parole conditions requiring abstinence from taking liquor and use of illicit drugs.  Indeed, it was accepted that on the day of the current offences the appellant was markedly affected by liquor and had recently used cocaine.  Furthermore, on three occasions there were breaches of the terms of home detention bail in the form of cocaine ingestion and use of liquor.

16. In my view the judge was entitled to take the view that the appellant’s long-standing alcohol and drug abuse remained a profound challenge to him.  That was a relevant factor in setting the non-parole period as much as was the history of breaching parole and conditions regulating release.

17. It was not suggested by the appellant that his absence from the home would give rise to the exceptional level of hardship contemplated in cases such as R v Wirth (1976) 14 SASR 291 and the later cases. However, plainly, the situation of his family was a relevant one. I do not understand that the judge considered otherwise. However, it might be inferred from what she said that she considered the leniency which had previously been extended to him on account of that situation had turned out to be misplaced.

18. A discrete ground of appeal complains of an observation made by the judge to the effect that “for some time [the appellant] indicated pleas of not guilty to the charges”.  The observation was made in the course of setting out some of the history of the matter.  Strictly speaking, the appellant had pleaded guilty to count 1 as it now appears on the occasion of his first arraignment.  However, it seems clear that the judge was speaking of the charges arising from the incident, rather than the charges as they appeared in the second information.  In any event, credit given for the pleas of guilty amounted to a reduction of about 24 per cent from the starting point.  No complaint could be made that more credit should have been given.

19. Particular complaint was made about the judge’s emphasis, both in the course of sentencing submissions and also in her remarks, on the appellant’s failure to make any offer of compensation to the victim of count 1.  As a response to the judge’s allusion to this topic the appellant wrote a letter, presented to the judge on the final day of submissions in December 2010.  The appellant explained that, although his family ran a large business in which he also worked, there were challenges facing the business, including his father’s ill health, and he himself could not offer compensation while he was not working in the business.  However, he asserted that within 12 months of his release he would make six-monthly payments to Mr Croad and his brother of $5,000, to a total of $20,000.  He indicated a preparedness to have this offer embodied in a court order.

20. In her sentencing remarks the judge referred to what she called the appellant’s “promises about the future”, but said that she needed to give greater weight to the appellant’s actions, particularly his offending and the breaches of parole and bail.  She noted that despite Mr Croad’s profound injuries and disablement the appellant had made no compensation to him in the three years or more since the offending.  However, counsel for the appellant argues that the apparently genuine offer of compensation and the appellant’s contrition suggested that his prospects of rehabilitation were good and that this should have been reflected in a non-parole period which formed a lesser proportion of the head sentence.

21. The appellant’s submission on the topic of restitution needs to be evaluated against the fact that s 10(1)(f) of the Criminal Law (Sentencing) Act 1988 requires a sentencing judge to take into account:

    10—Matters to be considered by sentencing court

    (1)     …

    (f)the degree to which the defendant has shown contrition for the offence—

    (i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or

    (ii)    in any other manner;

    …

    I consider that the judge was entitled to express a degree of scepticism about the level of contrition claimed by the appellant.  Much time had passed since the offences were committed.  Irrespective of lengthy negotiations between the appellant and the prosecuting authorities, it was always clear that the appellant’s gratuitous violence was instrumental in reducing an able-bodied man to a pitiable state.  I do not consider that the contrast drawn by the judge between the lack of any offer of assistance – from a man who apparently had resources enough to apply to projects which he favoured – with a readiness to express contrition was unfair.

22. Specific complaint was made about the judge’s failure to mention that prior to sentence the appellant had been on home detention bail for a period of about 16 months.  Counsel acknowledged that, as already mentioned, there were three breaches of the terms of the bail in that period and it was ultimately revoked.  However, counsel argued that the failure of the judge to give credit for that period, or to even mention it, amounted to an error.

23. It seems from the papers that the terms of the appellant’s home detention bail were not particularly onerous.  He continued to work in the family business during that period and was permitted to go about a number of separate pursuits.  I do not consider that the judge was obliged to give any credit for such a period;  particularly when the appellant abused drugs during it.  It remains a matter for a sentencing judge to determine whether credit should be given for home detention bail, and if so, how it is quantified.

    Conclusion

24. All the matters which have been stressed during the hearing of this appeal were carefully and comprehensively put before the sentencing judge.  Much material in support of the various submissions made was tendered.  There were a great many considerations, many of them competing, to be taken into account.

25. It is true that the starting point of seven years forms a high proportion of the maximum penalty for count 1 of ten years.  But of course that starting point also took in the separate assault offence.  It also had to reflect the fact that the appellant was on parole for serious offences at the time of the current offences.  That was a factor of some significance.  I do not consider that any of the complaints of error have been made good.  Ultimately this Court’s decision amounts to an assessment of whether the head sentence imposed was within the area of discretion reserved to the sentencing judge.  In my view it was.

1. I acknowledge that in terms of the setting of a non-parole period there were factors which told in the appellant’s favour.  However, again, that these offences amounted to a breach of parole tended the other way.  The breach of parole and the more recent breaches of home detention bail tended to cast doubt on the appellant’s resolve or ability to rehabilitate himself.  As Dr Raeside pointed out, the appellant’s prospects of rehabilitation were closely linked to his ability to abstain from drug taking.  The setting of a non-parole period is very much a matter of judgment.  Again, the period selected seems to me within the area of discretion reserved to the judge.

2. All in all, I do not consider that the sentence should be disturbed on account of any of the grounds of appeal.  There is, however, an adjustment that needs to be made to the arrangement of the sentence.

3. In constructing the sentence the judge chose to subtract the time spent in custody from both the provisional head sentence and the provisional non-parole period.  No doubt she chose to do this to give the appellant the full benefit of that time, as would have occurred had the sentence been able to be backdated.  In order to do so, the judge necessarily had to add the unexpired period of parole to the provisional head sentence of five years and four months.  However, once credit had been given for the time spent in custody, that left a situation in which the head sentence for the current offences is not able to be quantified.  That is an unsatisfactory position.  For that reason I propose to rearrange the sentence so that the head sentence imposed will remain identifiable, but the appellant will still receive the full benefit of the time spent in custody.

4. Accordingly, I would approach it in this way.  I take a starting point of seven years and reduce it to five years and four months on account of the pleas of guilty.  I then subtract the time in custody, calling it one year and eleven months.  That leaves a head sentence of three years and five months for the two offences.  The sentence is to be served cumulatively upon the unexpired balance of the sentence for which the appellant was on parole, being two years, seven months and 21 days.  That gives a total head sentence to be served of six years and 21 days.  Against that total period of imprisonment I set a non-parole period of four years and one month.  The balance of the previous sentence and the non-parole period will be taken to have commenced on the day of the original sentence, being 14 April 2011.

5. The orders I would make are as follows:

   1.allow the appeal for the limited purpose of rearranging the sentence;

   2.set aside the sentence imposed in the District Court and in its place impose a sentence of three years and five months for the current offences.  That sentence is to be served cumulatively upon the unexpired balance of parole, namely two years, seven months and 21 days, giving a total head sentence of six years and 21 days;

   3.in respect of the total period of imprisonment to be served, fix a non-parole period of four years and one month;

   4.the balance of the previous sentence and the non-parole period are to be taken to have commenced on 14 April 2011.

6. PEEK J:   I agree with the orders of Vanstone J and with her reasons.