R v MARSHALL - [2016] SASCFC 147

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MARSHALL
[2016] SASCFC 147
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Doyle)
21 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
Appeal against decision of District Court Judge to revoke a bond associated with a suspended sentence and order that the sentence be served. Whether Judge erred in finding that no special circumstances existed justifying reduction of the sentence. No reasons given by Judge for that finding.
Held (per Vanstone J, Parker and Doyle JJ agreeing): Appeal allowed. Special circumstances exist to reduce the non-parole period.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 54(4), referred to.
R v Buckman (1988) 47 SASR 303; Stanitzki v Higgins (1994) 63 SASR 309; Wiltshire v Leech (1987) 136 LSJS 339, considered.

R v MARSHALL
[2016] SASCFC 147
Court of Criminal Appeal: Vanstone, Parker and Doyle JJ

VANSTONE J: This is an appeal against the decision of a District Court Judge to revoke a bond associated with a suspended sentence and order that the sentence be served. The appeal focuses on the sentencing Judge’s decision that there were no special circumstances justifying reduction of the sentence.
Background
In September 2013 the appellant pleaded guilty in the District Court to being unlawfully on premises, aggravated assault causing harm and damaging property. In February 2014 he was sentenced for those offences. Each offence had been committed in Whyalla on 16 September 2012, some three days after the appellant’s 21^st birthday. The Judge imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) being imprisonment for three years with a non-parole period of two years. The sentence was wholly suspended upon the appellant entering into a bond for three years with conditions including supervision for two years, drug and alcohol counselling and psychological counselling.
The offending for which that sentence was imposed was serious. In the early hours of the morning the appellant went to the home of his former girlfriend, taking with him a metal pole. He entered the premises, abused the girlfriend and then hit a man who was in her bed, over the head. There were also blows to the legs. The appellant was abusive and threatening. As he left he smashed the windows of the man’s motor vehicle. The victim suffered serious injuries. In committing these offences the appellant was in breach of a simple bond entered into only a month before, for common assault. An earlier good behaviour bond for damaging property had been estreated in 2011. Therefore, up to the time of sentence the appellant’s response to bonds had been poor. Nonetheless, describing the decision as “lineball”, the Judge determined that the sentence should be suspended.
In the event, the appellant’s response to supervision was less than exemplary. In February 2015,…

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 MARSHALL

Details

AGLC: R v Marshall [2016] SASCFC 147
Case: [2016] SASCFC 147
Decision Date: 21 December 2016

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by the appellant, R v Marshall, before the Full Court of the Supreme Court of South Australia, comprising Vanstone, Parker and Doyle JJ. The appeal concerned the appellant's non-parole period in relation to a sentence imposed under the *Criminal Law (Sentencing) Act 1988* (SA).

The central legal issue before the court was whether "special circumstances" existed, within the meaning of s 58(4) of the *Criminal Law (Sentencing) Act 1988* (SA), to warrant a reduction in the appellant's non-parole period. This involved considering whether the appellant's progress in rehabilitation, despite poor compliance with bond conditions, rendered the original non-parole period inappropriate or oppressive.

The court, in allowing the appeal, reasoned that a combination of factors constituted special circumstances. These included the appellant's period of over four years without reoffending since the original offence, his apparent overcoming of substance abuse issues, the continued support of his family, and his successful attainment of employment. The court found that these factors indicated significant progress in rehabilitation, largely achieving the objective of the original suspended sentence. Consequently, the court determined that the original non-parole period of two years was oppressive and reduced it to one year, thereby allowing the appellant to spend a greater proportion of his sentence on parole to facilitate his re-establishment in the community.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I consider that there are special circumstances to reduce the non-parole period to some extent to ensure that the processes of rehabilitation are not impeded, if not halted, by the appellant spending at least two years in gaol. I propose that the non-parole period be reduced from two years to one year. That will mean that the appellant is likely to spend some two years on parole. This, hopefully, will enable him to re-establish himself in the community. Conclusion I would allow the appeal. I would order pursuant to s 58(4) of the Criminal Law (Sentencing) Act 1988 (SA) that the term of the sentence to be served be reduced by reducing the non-parole period from two years to one year. The appellant commenced serving that sentence on 16 August 2016. PARKER J: I agree with the reasons of Vanstone J and the orders she proposes. DOYLE J: I agree with the reasons of Vanstone J for considering the issue of “special circumstances” under s 58(4) of the Criminal Law (Sentencing) Act 1988 (SA) afresh, and with her Honour’s reasons for concluding that such circumstances exist and warrant a reduction in the appellant’s non-parole period. In summary, the matters relevant to the existence of special circumstances in this case are that the appellant has not offended in the period of over four years since the offending that gave rise to his suspended sentence; he appears to have overcome his substance abuse; he has the continued support of his family; and he has been able to obtain employment. The combination of these factors suggests that, despite the appellant’s poor compliance with the conditions of his bond, his rehabilitation is well progressed, and the objective of the suspension of his original sentence has been in large measure achieved. The authorities recognise the capacity for such considerations to qualify as special circumstances.[1] They are capable of rendering the original sentence inappropriate or oppressive in the special circumstances now existing.[2] [1] Wiltshire v Leech (1987) 136 LSJS 339 at 343-344; Stanitzki v Higgins (1994) 63 SASR 309 at 316.[2] R v Buckman (1988) 47 SASR 303 at 304. Given the appellant’s relatively young age (particularly when the sentence was first imposed) and the relatively high proportion of the non-parole period to the head sentence, I consider that there are special circumstances warranting a reduction in that non-parole period. I therefore agree with the orders proposed by Vanstone J.

Ratio Decidendi

Legal Principle Established

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