R v McNamara - [2009] SASC 227

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MCNAMARA
[2009] SASC 227
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice Kourakis)
6 August 2009
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE
Application by Director of Public Prosecutions for permission to appeal against sentence - defendant and respondent pleaded guilty to offences of serious criminal trespass, theft and aggravated causing serious harm with intent to cause harm - sentence of imprisonment for the three offences of four years and six months imposed with non-parole period of 18 months - whether sentence manifestly inadequate - whether Judge erred in exercise of sentencing discretion pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 - whether reduction of twenty five per cent on account of guilty pleas justifiable.
Held (Vanstone & Kourakis JJ): application for permission to appeal granted - appeal allowed - sentence imposed set aside - defendant resentenced to term of imprisonment of six years and nine months imprisonment having regard to reduction of head sentence of fifteen per cent - non-parole period of four years fixed - sentence to take effect from 22 April 2008.
Held (Gray J): appeal allowed - sentence imposed set aside - appropriate for defendant to be resentenced to term of imprisonment of seven years and six months having regard to reduction of head sentence of one quarter on account of pleas of guilty, contrition and remorse - appropriate to fix a non-parole period of five years fixed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 5AA(1) and s 352(1)(a)(iii), referred to.
Barry v Samuels (1975) 10 SASR 376; Miller v Huffa (1980) 24 SASR 595; Gaston v Police [2004] SASC 222; R v Symonds [1999] SASC 217; Warren v Kay (1995) 83 A Crim R 493; R v McCormack [1981] VR 104; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Major (1998) 70 SASR 488; R v Place (2002) 81 SASR 395; Attorney-General v Tichy (1982) 30 SASR 84; R v Siozios (2004) 236 LSJS 88; R v Delphin (2001) 79 SASR 429; R v Bennett [2005] SASC 55; Heatlie v Police (1993) 172 LSJS 94; R v Errigo (2005) 92 SASR 562, considered.

R v MCNAMARA
[2009] SASC 227
Court of Criminal Appeal Gray, Vanstone and Kourakis JJ
GRAY J.

This is an application by the Director of Public Prosecutions for permission to appeal against sentence.[1]
[1] Section 352(1)(a)(iii) Criminal Law Consolidation Act 1935 (SA).
The defendant pleaded guilty in the District Court sitting at Port Augusta to the offences of serious criminal trespass, theft and aggravated causing serious harm with intent to cause serious harm. The sentencing Judge imposed the one sentence for the three offences, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), of imprisonment for four years and six months. A non-parole period of 18 months was fixed.
The circumstances of the offending and the defendant’s criminal and personal antecedents are set out in the reasons of Vanstone J. The offence of serious harm with intent to cause serious harm was aggravated as it involved an attack on a police officer.[2] At the time the officer was in uniform and was directing the defendant to stop. Instead of complying with this direction the defendant, who was seeking to flee and avoid apprehension, struck the officer about the head and neck with a full bottle of fortified wine. As a consequence the officer suffered severe injuries to his neck and face. The officer was fortunate that more serious injuries were not sustained.
[2]
The police officer required extensive surgery. Some 60 sutures were required to close the severe lacerations. Keloid scarring developed. Further surgical treatment has been required. The officer will require ongoing treatment in the future. The injuries have resulted in permanent disfigurement to the officer’s face and neck and troublesome scarring.
The officer described to the Court the physical and emotional effects of the attack. His initial concerns focussed on how his disfigured appearance would upset his fiancé upon her arrival at hospital following the incident. He described his fear and apprehension of reprisal attacks from the defendant during his stay in hospital. He also described his later fear of leaving his home upon his return home from hospital. He was upset and embarrassed by his appearance. He is often asked in the course of his employment about how he sustained his injuries. The officer withdrew from many activities and distanced himself from others, and the aftermath of the attack caused much strain in his relationship with his fiancé. They attended counselling in relation to the assault. He did not want to visit family and friends, especially those with young children, as he did not wish to cause them any shock or fright as a result of his appearance.
The officer explained to the Court that he is committed to his police work. However, since the incident he has had doubts as to his suitability for and performance in the role. His fiancé did not want him to return to work as a police officer and is still concerned for his safety. He explained that he has become less tolerant of disagreeable members of the public as a result of the incident.
Courts have repeatedly emphasised that police officers perform an important role in the public interest, and the need for the courts to protect those officers as they pursue their duties.[3] For this reason general deterrence is a particularly important consideration when sentencing for an attack on a police officer.[4] In the present proceeding the aggravated offence was compounded by the nature of the attack, the use of a weapon, the fact that the blow was directed towards the head and neck and the fact that the attack was undertaken in an effort to avoid apprehension and to enhance the prospects of flight.
[3] Barry v Samuels (1975) 10 SASR 376 at 377-378; Miller v Huffa (1980) 24 SASR 595 at 598; Gaston v Police [2004] SASC 222 at [9] – [12]; see also Warren v Kay (1995) 83 A Crim R 493 at 497-498.
[4] R v McCormack [1981] VR 104 at 109 (Young CJ, Kaye and McGarvie JJ).
The Judge was entitled to utilise section 18A of the Sentencing Act to impose the one sentence. However, this was a case where, before imposing the one sentence, the different nature of the offences called for the identification of the separate penalties to be imposed with respect to the assault on the one hand and the trespass and theft on the other. Consideration also needed to be given to the question of the separate notional sentences being cumulative.[5]
[5] R v Symonds[1999] SASC 217.
In imposing the one sentence in respect of the offending, it was to be borne in mind that the defendant had significant criminal antecedents and was not entitled to any leniency on account of good character.
In my view the sentence imposed was manifestly inadequate. To borrow from the language of King CJ in Osenkowski[6] the inadequacy of the sentence was such as to shock the public conscience. Further, as observed by Vanstone J, the Judge was in error to give any credit for the lack of prior convictions for offences of violence. The defendant’s criminal antecedents were such that he was not entitled to credit in respect of prior good character. This is a case for the grant of permission to appeal.
[6] R v Osenkowski (1982) 30 SASR 212 at 213.
The sentencing Judge made a reduction of one quarter on account of the pleas of guilty and contrition and remorse. Counsel for the Director acknowledged that, in the circumstances, a reduction of this order was within the sentencing Judge’s discretion. Counsel for the defendant on appeal pointed out that difficulties arose in the defendant obtaining access to legal advice. The Court was informed that this was a problem in country areas. This was said to provide an explanation for the delay of several months in entering the pleas in the within proceedings. Having regard to this explanation and to the Director’s submissions, a reduction of one quarter should be treated as the appropriate reduction to be made in the present case.
In my view the appropriate penalty for the offence of aggravated causing serious harm with intent to cause harm in the present proceeding is a sentence of imprisonment in the range of eight to ten years and the appropriate sentence for the offences of serious criminal trespass and theft is in the range of two to four years. These latter offences were part of the one course of conduct. In arriving at a head sentence, I would make a reduction of one quarter on account of the pleas of guilty, contrition and remorse. Having regard to the principle of totality, and to the fact that this is an appeal by the Director, I would fix a sentence at the low end of the total range of 10 to 14 years. As a consequence and having regard to the reduction for the pleas, I would impose a sentence of imprisonment of seven years and six months and fix a non-parole period of five years.
Conclusion
I would grant permission to appeal. I would allow the appeal and set aside the sentence imposed. I would resentence the defendant pursuant to section 18A to the one sentence of imprisonment of seven years and six months. I would fix a non-parole period of five years. I would order that the sentence take effect from 22 April 2008.
VANSTONE J: The Director of Public Prosecutions seeks leave to appeal against a sentence imposed in the District Court, sitting at Port Augusta.
The respondent was charged on an information alleging six counts. More than two months after his first arraignment, the respondent pleaded guilty to serious criminal trespass, theft and aggravated causing serious harm with intent to cause serious harm. A further two months later, the Director entered nolle prosequis in relation to the remaining three counts on the Information. The sentencing judge fixed one sentence for the three offences, being imprisonment for four years and six months, with a non-parole period of eighteen months.
Background
The three offences to which the respondent pleaded guilty occurred during a short period of time on the night of 19 April 2008.
The serious criminal trespass was committed at about 8 o’clock in the evening when the respondent broke into a private residence at Port Lincoln. The occupants were not present at the time. This offence carries a maximum penalty of 15 years imprisonment. The respondent stole a number of items from within, including a camera, sunglasses, money, DVDs and a bottle of port. Theft carries a maximum penalty of 10 years imprisonment.
At the time of this offending, two policemen were in the area, investigating another serious criminal trespass. One of them, Constable Stock, observed the respondent running through a park, close by to the premises which had recently been unlawfully entered. He was carrying two bags. The officer identified himself and, several times, called upon the respondent to stop. As the respondent came closer, the constable saw that one of the bags contained many DVDs. As the constable reached for his radio, the respondent hit him over the head with a bottle of port. The bottle broke upon impact, causing serious lacerations to the left side of the policeman’s face and neck as well as a deep cut to his right shoulder. The respondent fled and the officer pursued him, but he made his escape and a police search of the area failed to find him. Constable Stock was taken to the Port Lincoln Hospital. He underwent surgery on the following day, requiring more than 50 sutures. He underwent further surgery subsequently and treatment was ongoing at the time of sentence.
In a victim impact statement, the constable described the physical and psychological injuries suffered as a result of this assault. He is left with prominent, raised scarring on his neck, reduced movement and a loss of sensation. It is expected that the scarring will be permanent. In his victim impact statement the officer said that the incident has caused him to lose confidence in his ability as a policeman. Causing serious harm with intent to cause serious harm, aggravated because the victim was a police officer, carries a maximum penalty of 25 years imprisonment.
Police enquiries quickly focussed on the respondent. He was found not to be at his usual address. Two days after the offending, in accordance with an arrangement made with police, the respondent attended the Port Lincoln police station with his solicitor. He declined to answer questions.
At the time of the offending, the respondent was 30 years of age. Until two months prior to the commission of these offences he had been in a long term relationship with a woman, with whom he had five children, aged two to twelve years. His partner left him, taking the children. The respondent claimed that this led to him abusing liquor and drugs and to the commission of these offences.
The respondent has previously been convicted of breaking offences, the most recent of which was in 1999. Then, he was sentenced to 22 months imprisonment, as well as being required to serve a previously suspended sentence of 21 months for earlier, similar, offending. Just prior to the offending in the instant case, the respondent had completed a two-year bond associated with another suspended sentence, imposed for offences of theft, deception and receiving. The respondent has no convictions for assault.
In relation to the current offences, the learned sentencing judge imposed one sentence, utilising section 18A of the Criminal Law (Sentencing) Act 1988. Her Honour took a starting point of six years. She deducted 25 per cent for the pleas of guilty, leaving a head sentence of four years, six months. A non-parole period of 18 months was fixed.
The judge treated as a matter of mitigation the fact that the respondent had no prior convictions for offences of violence. She considered that there was scope for rehabilitation in terms of the family support available to the respondent. Whilst not specifically stating the relative weight attributed to each offence, the judge spoke in terms which suggest that she viewed the assault on Constable Stock as the most serious offence. Her Honour said: “The police are entitled to the full protection of the law in carrying out their lawful duties and that is a factor which must weigh heavily in assessing an appropriate sentence”.
The Director submits that the sentence imposed fails to reflect the entitlement to which the sentencing judge referred. It is manifestly inadequate in that it fails to maintain appropriate standards of punishment and deterrence, particularly in relation to offences committed against police officers acting in the course of duty.
Analysis
Well-established principles govern prosecution appeals against sentence. Only in rare and exceptional cases will the Court grant leave: Everett v The Queen (1994) 181 CLR 295. Leave will only be granted if necessary to enable the court to establish and maintain adequate standards of punishment, or if the sentence imposed is so far below the appropriate standards as to shake public confidence in the administration of justice: R v Osenkowski (1982) 30 SASR 212 at 213; R v Nemer (2003) 87 SASR 168 at 172. Both considerations are relevant here.
The Court of Criminal Appeal has consistently held that, in applying s 18A of the Sentencing Act, the sentencing judge, should, as a general rule, first determine what sentence each separate offence would attract. Then, consideration should be given to whether the sentences would be concurrent or cumulative: R v Major (1998) 70 SASR 488 at 490 (Doyle CJ) and 497 (Olsson J); R v Place (2002) 81 SASR 395 at 432 (Doyle CJ, Prior, Lander and Martin JJ). Following that method has the advantage of exposing the sentencing process to scrutiny by an appellate court. Additionally, it serves to demonstrate to the victim that the crime against him or her has been duly considered and is reflected in the sentence. It is also a process valuable to the sentencing judge in terms of arriving at a sentence which reflects the entirety of the criminal conduct for which penalty is to be imposed. Having said that, I do not suggest that a precise or arithmetical approach is called for. Ultimately, the sentence imposed under s 18A must reflect the total criminality involved: Attorney-General v Tichy (1982) 30 SASR 84 per King CJ at 85; R v Siozios (2004) 236 LSJS 88 per Perry J at [4], Doyle CJ agreeing.
It is necessary to consider the two separate incursions into offending by the respondent: the serious criminal trespass and theft offences, and the causing serious harm offence.
In R v Delphin (2001) 79 SASR 429 the Court of Criminal Appeal considered the appropriate tariff for the offence of serious criminal trespass in a place of residence. After noting the dramatic increase in the maximum penalty, the Court said that following a plea of guilty for a first offence, where the intention on entering was to steal, a penalty for a first offender in the order of 20 to 24 months would be appropriate. As the Chief Justice observed in R v Bennett [2005] SASC 55, these remarks are no more than an indicator of the appropriate sentence in such a case.
As noted above, the respondent had significant previous convictions for dishonesty offences and had served a lengthy period in gaol. Even after the pleas of guilty, a penalty of two years for this trespass and theft would seem to me to be at the lower end of the available range of sentences.
Assaults against members of the police force acting in the course of duty are significant criminal offences. Those who attack police officers cannot, in the absence of exceptional circumstances, expect leniency: Miller v Huffa (1980) 24 SASR 595 at 598 per Walters J. Deterrence is a major consideration: Heatlie v Police (1993) 172 LSJS 94 at 95 (Mullighan J). As seen, the sentencing judge acknowledged these principles in her remarks. However, they were not reflected in the sentence imposed. In my view it was wrong to give any credit for the lack of prior convictions for offences of violence. It is not consistent with principle to compartmentalise issues of character in this way. The fact is the respondent could not claim credit for prior good character. I consider that the Director of Public Prosecutions has made good the argument that this sentence fails to maintain adequate sentencing standards and should not be allowed to stand.
The respondent’s offending in this matter was made all the more serious by the fact that he committed this offence whilst trying to flee from the scene of other serious offences. That fact tends to rob of any weight the contention that the offence was not premeditated. Ordinarily, an offence of this order, committed in these circumstances, should attract a sentence at the level of about six to nine years, before consideration of a plea of guilty.
Since these offences amounted to two separate incursions into the criminal law, a court would be justified in ordering that the sentences be served cumulatively. Whether accumulated or not, the sentences had to reflect the entirety of the criminal conduct: Attorney-General v Tichy.

In my view the seriousness of the total offending dictated a starting point in the range of 8 to 10 years. This court has noted that when a prosecution appeal against sentence is upheld, the fresh sentence should be at the lower end of the range of sentences available: R v Siozios (2004) 236 LSJS 88 per Perry J at [19], Doyle CJ agreeing; R v Errigo (2005) 92 SASR 562 per Doyle CJ at [48], Bleby and Gray JJ agreeing.
In these circumstances, a starting point of eight years is appropriate. I consider the reduction of 25 per cent made by the judge for the guilty pleas is not justifiable. The respondent did not confess to police and the pleas were not entered at the earliest opportunity. In my opinion a reduction of no more than 15 per cent is appropriate. This results in a head sentence in the order of six years nine months. The non-parole period, like the head sentence, needs to reflect the seriousness of the crimes. There is no factor calling for a lower than usual period. I would fix a non-parole period of four years.
Conclusion
I would make the following orders:
1.     grant permission to appeal to the Director of Public Prosecutions;
2.     allow the appeal;
3.     set aside the sentence imposed in the District Court;
4.impose in its place a single sentence of six years and nine months imprisonment with a non-parole period of four years;
5.order that the sentence be deemed to have commenced on 22 April 2008.
KOURAKIS J: I would grant permission to appeal and join in the orders proposed by Vanstone J for the reasons that Her Honour has given.

Section 5AA(1)(c) of the Criminal Law Consolidation Act 1935 (SA) provides:

the offender committed the offence against a police officer, prison officer or other law enforcement officer—
(i) knowing the victim to be acting in the course of his or her official duty; or
(ii) in retribution for something the offender knows or believes to have been done by the victim in the course of his or her official duty;