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

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…

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 Marrone

Details

AGLC: R v Marrone [2011] SASCFC 78
Case: [2011] SASCFC 78
Decision Date: 29 July 2011

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, Mr Marrone, for offences of causing harm with intent to cause harm and assault. The appeal was brought before the Full Court of the Supreme Court of South Australia, comprising Doyle CJ, Vanstone and Peek JJ. The appellant argued that the head sentence and non-parole period were manifestly excessive.

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

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 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. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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