R v McNamara

Case [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.

  1. 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).

  2. The defendant pleaded guilty in the District Court sitting at Port Augusta to the offences of serious criminal trespass, theft and aggravated causing serious…

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AGLC
R v McNamara [2009] SASC 227
Case
[2009] SASC 227
Decision Date

CaseChat Overview and Summary

The case of R v McNamara involved an appeal against the sentence imposed on the respondent by the District Court of South Australia. The respondent had pleaded guilty to serious criminal trespass, theft, and aggravated causing serious harm with intent to cause harm. The District Court sentenced him to imprisonment for four years and six months, with a non-parole period of eighteen months. The Director of Public Prosecutions sought leave to appeal the sentence, arguing that it was manifestly inadequate.

The legal issues before the court were whether the sentence imposed by the District Court was manifestly inadequate and whether the sentencing judge had erred in exercising their discretion under section 18A of the Criminal Law (Sentencing) Act 1988. Additionally, the court needed to determine whether the reduction of twenty-five per cent on account of the guilty pleas was justifiable. The court was required to assess the severity of the offences and the circumstances surrounding them to decide on an appropriate sentence.

The court granted the application for leave to appeal and allowed the appeal. The judges found that the sentence imposed by the District Court was manifestly inadequate, and thus set it aside. They resentenced the respondent to imprisonment for seven years and six months, taking into account the reduction for the guilty pleas, contrition, and remorse. The court fixed a non-parole period of five years, and the sentence was to take effect from the date of the original sentencing. This decision highlighted the importance of considering the nature and circumstances of the offence, as well as the principles of totality and the impact of the offender's guilty plea, contrition, and remorse when determining an appropriate sentence.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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