R v McPartland and Polkinghorne
[2014] SASCFC 84
•24 July 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MCPARTLAND & POLKINGHORNE
[2014] SASCFC 84
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Nicholson)
24 July 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PROCEDURE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SENTENCING STATISTICS, SCHEDULES, TARIFFS, COMPARISONS, ETC - GENERAL PRINCIPLES
Application by the DPP for permission to appeal against sentences on the ground of manifest inadequacy.
Mr McPartland and Ms Polkinghorne (the respondents) were jointly charged with, and convicted of, the manslaughter of Chloe Valentine, the four year old daughter of Ms Polkinghorne. Her death resulted from injuries she sustained after repeatedly falling from the 50 cc motorbike the respondents made her ride and the failure by the respondents to seek timely medical treatment for her during the period between 16 January 2012 and 21 January 2012. Both respondents pleaded guilty and were sentenced on the basis that they were equally responsible for the death. Ms Polkinghorne received a head sentence of eight years imprisonment with a non-parole period of four years and nine months. Mr McPartland received a head sentence of seven years imprisonment with a non-parole period of four years and two months; his lesser sentence was due to his plea being entered considerably earlier than Ms Polkinghorne’s. The DPP applied for permission to appeal against the sentences on the sole ground that they were “manifestly inadequate”.
Held Peek J, Stanley J and Nicholson J agreeing, refusing permission to appeal:
1. Permission to appeal against sentence should only be granted to the DPP in rare and exceptional cases. Such circumstances include the need to lay down principles for the governance and guidance of sentencing judges, the need to maintain adequate standards of punishment for a crime, and the need to correct sentences that are so disproportionate to the seriousness of the offence so as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained.
2. Where the sole ground of “manifest inadequacy” is relied upon, the DPP must establish that the sentence imposed is definitely below the lowest end of the range of sentences that could be imposed on the facts before the sentencing judge.
3. The sentencing discretion for the offence of manslaughter is very wide in keeping with the very broad range of seriousness of criminal offending that may attach to any particular case.
4. Whether or not a sentenced person should later have their sentence increased must be decided solely according to legal principle. Accordingly, submissions should not be couched in terms of “shocking the public conscience” or similar emotive language expressed in uncertain terms and liable to distract from the legal analysis that the Court is required to undertake, R v Siozios (2004) 236 LSJS 88, DPP v Fucile and Tran [2013] VSCA 312 applied.
5. There can be no precise or mathematical process of adding or subtracting units of severity of sentence when sentencing. The DPP has not established that the Judge gave inadequate weight, either alone or in combination, to the need to protect vulnerable children, personal and public deterrence, the gravity of the offending, and the limited application of the mitigating factors of rehabilitation and reform or that the sentences were “manifestly inadequate”.
DPP v Fucile and Tran [2013] VSCA 312; R v Siozios (2004) 236 LSJS 88; The Queen v R, AW (2012) 113 SASR 179, applied.
Barbaro v The Queen (2014) 88 ALJR 372; Hili v The Queen (2010) 242 CLR 520; R v Faehrmann; R v Moore; R v Price-Austin [2014] SASCFC 25; R v Johnston (2007) 173 A Crim R 540; R v Jones (2010) 108 SASR 479; R v Nedza [2013] SASCFC 142; R v Nemer (2003) 87 SASR 168; Wong v The Queen (2001) 207 CLR 584, discussed.
Everett v R (1994) 181 CLR 295; R v Payne (2004) 89 SASR 49, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly inadequate", "shock the public conscience"
R v MCPARTLAND & POLKINGHORNE
[2014] SASCFC 84Court of Criminal Appeal: Peek, Stanley and Nicholson JJ
PEEK J. Mr Benjamin McPartland (McPartland) and Ms Ashlee Polkinghorne (Polkinghorne) were jointly charged with, and convicted of, the manslaughter of the daughter of Polkinghorne, the child Chloe Valentine (Chloe). They will be jointly referred to as “the respondents” to this application.
The charge of which they were each convicted is as follows:
Statement of Offence
Manslaughter. (Section 13 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Benjamin Robert McPartland and Ashlee Jean Polkinghorne between the 16th day of January 2012 and the 21st day of January 2012 at Ingle Farm, unlawfully killed Chloe Valentine.
It is important to note that the charge is limited to conduct which took place between 16 January and 21 January 2012. The respondents were charged in that way because it is clear that the death of the child Chloe was caused by the conduct (comprising both positive acts and failures to act) which occurred during that time period. It is for that conduct, rather than allegations of poor parenting that predate that time period, that the respondents were to be sentenced.
The respondents were sentenced on the basis that they were equally responsible for the death of Chloe. McPartland was sentenced to a head sentence of seven years with a non-parole period of four years and two months, and Polkinghorne was sentenced to a head sentence of eight years with a non-parole period of four years and nine months.[1] The sentences were to commence as at the date of sentencing. It may be added that in addition to such sentences, the respondents had each been held in custody for three days after arrest, before being granted bail, and had spent some nine months on home detention bail.
[1] The difference between those sentences is mainly explained by the fact that McPartland pleaded guilty on 23 December 2013, approximately one month and ten days before his trial was due to commence, whereas Polkinghorne maintained a plea of not guilty up to trial, and only changed her plea to guilty on the third day of trial after rulings were made on a voir dire hearing adverse to her application for the exclusion of evidence.
The sentencing system in the higher courts in South Australia
The apportionment of criminal jurisdiction between the Supreme Court and the District Court in South Australia is that the Supreme Court may hear any case while the District Court may hear any case, except those of treason and murder which must be heard by the Supreme Court. However, it is often the case that the Supreme Court will hear serious cases other than those involving charges of treason and murder; and so it was that this case of manslaughter was allocated to a Supreme Court Judge for hearing and determination.
As to the general sentencing process, it is pointless trying to improve on the following remarks of Doyle CJ:[2]
[5]The judge must impose a sentence arrived at by following the requirements of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). This requires consideration, putting things generally, of the penalty fixed by Parliament (usually a maximum only is specified), of the circumstances of the offence and of all of the matters affecting the sentence that are found in the Sentencing Act.
[6]The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.
[7]In different cases these considerations will operate in different ways and to differing degrees. As has been said, these considerations are no more than guideposts to the appropriate sentence and sometimes they point in different directions: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.
[8]That is why sentencing an offender is not a precise process. There is no sentence that is exactly right in a given case. In any particular case the most that can usually be said is that an appropriate sentence will be within a certain range. Any sentence within that range is appropriate. Different judges, presented with the one case, are likely to arrive at different results within that range. The different results do not indicate that an error has been made, as long as they are within the acceptable range. They reflect the nature of the sentencing process.
[9]This may be disconcerting to some. But it is important that the public understand it.
[2] R v Nemer (2003) 87 SASR 168, 170. His Honour’s general remarks were accepted by the other members of the Court although he was in the minority in the actual result.
The facts found and the sentences imposed by the sentencing Judge
In some cases where identified errors of a Judge are asserted, it may be necessary for this Court to construct a new edifice of acceptable findings of fact. That is not this case; there is no criticism here of the way that her Honour found, or expressed, the facts. Rather than making an unnecessary attempt to summarise the facts myself, and thereby altering in some way the balance and emphasis determined by her Honour (as to which no complaint is made by the Director of Public Prosecutions), I will simply reproduce the relevant passages from her Honour’s remarks on sentence.
Her Honour, finding that the respondents were equally responsible for the death, was able to address the respondents collectively as “you” in delineating the extent of their offending. Her Honour stated:
In mid January 2012, you purchased a 50 cc dirt bike for Chloe who was then only four years old. The bike was far too big for her. She could barely touch the ground and could not stop the bike without falling off it to the ground. Both of you became well aware of that at a very early stage as on numerous occasions you Ms Polkinghorne filmed her efforts while Mr McPartland put her back on the bike, in some cases, virtually throwing Chloe back on the bike after she had fallen off.
Chloe weighed 17 kilograms at the time of her death. The bike weighed over 50 kilograms. Nevertheless, that did not stop you from causing Chloe to get on that motorbike on multiple occasions in the three days leading up to her death. Both of you made admissions in interviews with the police at the hospital and you, Ms Polkinghorne, in a later interview with police, a year later, admitted that you observed bruising on Chloe’s body as early as the Tuesday night and both of you admitted observing bruising at least by the Wednesday morning. Those admissions are consistent with the forensic pathology report which, though noting that bruising is notoriously difficult to age, concluded that some of Chloe’s injuries appeared to have been at least 72 hours old.
You failed to get her any medical treatment after the emergence of bruising and injuries on various parts of her body. That failure continued until 11.58 pm on Thursday, 19 January after Chloe stopped breathing. Even after Chloe was rendered unconscious, you waited another eight and a half hours while the child lay in a semi-vegetative state before either of you made a decision to call the ambulance. By your own admission, what you did in that intervening period was go on Facebook, do some internet banking, search Google as to what to do when a person was rendered unconscious, and continue to smoke cannabis.
Putting Chloe on that motorbike in the first place was negligent. Your failure to call the ambulance immediately after she was rendered unconscious was negligent. That failure was compounded by your decision to use cannabis which impaired at the very least your ability to care for your child or to make any sensible judgments in relation to her care and protection. Chloe was not enthusiastic to get back on that bike as you, Mr McPartland, claimed when interviewed by the police at the hospital.
I have viewed the film recording of Chloe on the motorbike on the Tuesday. It shows you, Mr McPartland, repeatedly placing that child back on the bike without reference to any injury she may have suffered and without reference, it appears to me, to any of her needs after falling off the bike.
I have also viewed other footage of Chloe in the weeks and months leading up to her death. I find on the basis of all of that material that Chloe was afraid of you, Mr McPartland. In those circumstances, I do not accept the submission which was made that Chloe was keen to get back on that bike.
I find in all the circumstances that this was a very serious example of the crime of manslaughter by criminal neglect.
Mr McPartland, through the course of time you were involved with Ms Polkinghorne, which I acknowledge was a relatively short period of time, you nevertheless have demonstrated behaviour which was abusive, controlling and at times violent.
You, Ms Polkinghorne, were the child’s mother, the person from whom above all others Chloe was entitled to expect nurturing, care and protection. You failed your child in that most important duty with fatal results.
Because neither of you have accepted full responsibility in respect of all of the conduct alleged by the prosecution against each of you, it is necessary that I say something about the circumstances of the offending and the background leading up to that offending. Let me make it clear that neither of you are to be sentenced for conduct which does not form part of the basis of the crime of manslaughter to which you have pleaded guilty. However, that background does shed some light and inform me as to how Chloe came to be riding a motorcycle in the circumstances she did in those three days before she died. I shall deal first with your role, Mr McPartland.
You admitted in an interview with the police that you had first put the child on the bike on the Tuesday morning prior to her death. You said that things thereafter got worse and worse. She had a couple of ‘little ones’, by which you were referring to falls, and then some big ones, during which she suffered whiplash by riding into some chicken wire.
On the Tuesday, you said she did not wear a helmet, but after she fell off you got her one. You knew the bike was too big for her. She could not hold it up and she could not put her feet on the ground when she was on it. Each time she got scared, which was apparently every time she got on the bike, she hit the accelerator and at the time when she drove the bike into the lemon tree on the last occasion you estimated her speed at 40 kilometres per hour. You saw obvious bruising which was extensive as early as the Wednesday. You acknowledge she had two black eyes and you noticed a cut on her head and some black and blue bruising on her arms and legs.
In the interview with the police at the hospital you portrayed a picture of a willing little girl who wanted to get on that bike even after falling off it face down. Even after her eyes were black with bruising and one of them was so bad she could barely open it, you said she wanted to ride that bike. You say it never occurred to you to stop her riding that bike after she injured herself, and although you acknowledge that the child did have bruises all over her and complained about a sore back and bottom, it still did not occur to you to take her to a doctor or stop her riding that bike.
You say your relationship with Chloe was a good one. However, the objective evidence does not support that assertion. You deny an incident observed by others when you washed the child’s mouth with soap for some transgression. You deny you ever set up a video camera in Chloe’s room and used it to frighten her into submission to staying in that room. As for the footage which you took on your own telephone of Chloe sitting and nearly falling asleep in the corner of her room, you say you took that to convince Ms Polkinghorne that the child had had enough disciplining and should be put to bed. As for the footage taken on Christmas Day of Chloe opening her presents, your explanation for the child’s demeanour in that video is that she was upset because of another argument between you and Ms Polkinghorne.
All of the evidence points to a small child who was extremely fearful of you, Mr McPartland, and who did not, on any occasion when she was rescued by other carers and her grandparents, ever want to go back into your care.
It is true that in the usual situation a child wanting to stay with her grandparents in preference to going back home may not mean much, except that she loves treats and things that grandparents usually give. However, the objective evidence in this case points to it being more than that.
I have read the psychologist Mr Broomhall’s report in relation to these matters. Unfortunately, that report does not even begin to come to grips with the implications of some of your alleged conduct against Chloe, Mr McPartland. That is not surprising because to Mr Broomhall you denied some of the worst aspects of your behaviour. However, for this reason I cannot place as much reliance on Mr Broomhall’s assessment of your prognosis for rehabilitation as I otherwise might have. I make it clear again that you are not to be sentenced for any earlier acts in relation to Chloe. However, these incidents which I accept did happen demonstrate that your relationship with Chloe was not a good one. Chloe was frightened of you and that explains why this four-year-old child would have got back on that bike again and again.
Even if she had wanted to get on that bike, it would not make any difference to your criminal culpability. Given its size and her age, she should never have been put on that bike in the first place. However, because of the child’s evident fear, I regard your repeated attempts to put her back on that bike in the manner which you did over three days as an aggravating factor in your offending. This was no one-off incident caused by a young man who did not know any better. You simply did not care. You were intent on acting out your own immature childhood fantasies to do with bike riding. It had nothing to do with Chloe.
The footage obtained by the prosecution from your phone and Ms Polkinghorne’s phone demonstrate there was something gravely amiss in the relationship between you and that child. The four-year-old would never have dared say no.
Even after you became aware of the gravity of the situation on the Thursday afternoon, neither you nor Ms Polkinghorne made any effort to get medical help until Chloe stopped breathing at 11.58 p.m. that night. That is, for eight and a half hours, neither of you did anything, apart from, as I have mentioned earlier, going on the internet to google what to do if someone was unconscious.
I deal now with your role in the offending, Ms Polkinghorne. You initially told the police much the same as Mr McPartland did in his interview at the hospital. One year later you went to the police and made a further statement. In that interview you sought to cast the major proportion of the blame on to Mr McPartland. You resiled from the version you gave in your first interview that Chloe hit her head again after coming inside the house after falling off the bike and hitting the lemon tree. You claimed in that second interview that, instead of hitting her head on the doorframe, she was actually assaulted by Mr McPartland who was shaking her and demanding that she call herself Chloe McPartland.
As neither of you were prepared to submit to cross-examination, I do not have the best evidence on which to base any findings in relation to those allegations. However, although there are aspects which you contest in relation to the events of the days leading up to Chloe’s death, on the important and central features of your conduct which gave rise to the offence of manslaughter, there is really very little to distinguish your version from Mr McPartland’s version.
You admit that you observed the child attempting to ride the motorbike on multiple occasions and falling off on multiple occasions. You could hardly deny it because there are videos of the child’s attempts at least on the Tuesday when you first obtained the bike.
Your account to the police in the second interview that the child was knocked unconscious at around 5.00 pm, which is when you say Mr McPartland assaulted her, is not consistent with objective evidence. That shows that by 3.39 pm on the Thursday someone was googling on the internet looking for advice on what to do with an unconscious person.
You too admitted that you knew the child could not get on the bike by herself and needed to be supervised at all times when she was on that bike. You too admit that you observed bruising on Chloe as early as the Tuesday night, and certainly by Wednesday morning.
On the Wednesday night, you said the child could hardly sleep and was complaining of being sore. You certainly knew by 3.39 pm on Thursday that there was something gravely wrong with Chloe. Even then you did nothing. You say it was because Mr McPartland flatly refused to call an ambulance. You claim to have been overborne by Mr McPartland’s controlling and violent conduct with regard to you and Chloe. You claim that he did not want to call the ambulance because he did not want people to realise that he had hit Chloe.
I can make no finding about that aspect of the conduct of you and Mr McPartland because I cannot rely on your word, especially in light of the fact that you had given different versions to different people and, as I said earlier, neither of you were prepared to submit to cross-examination.
Even if your allegations were true to some extent, it would not make much difference to your criminal culpability for your daughter’s death. You were Chloe’s mother, you saw the state Chloe was in on Wednesday and again on Thursday. You were the one who was closest to her, yet you gave her no medication, you did not take her to a doctor, and even after you knew something was gravely wrong, all you did was google on the internet and go on smoking marijuana, to which you admitted you were then addicted.
I do not accept that even if the relationship between you and Mr McPartland was as bad as you say it was, that you as the primary carer for that child were incapable of getting on the phone and getting that child to an ambulance. Nor do I accept from your evident amusement during the filming of Chloe on that bike that it was not a joint decision by the two of you in the first place which resulted in Chloe being placed on the bike.
The fact is that the injuries Chloe suffered on the bike were sufficient to ultimately cause death, even if there were extraneous assaults which caused some of the injuries doctors observed on Chloe and about which I can make no finding. The fact is that both of you were aware of the injuries and bruising on Chloe on the Wednesday morning. Both of you encouraged, permitted and facilitated the child continuing to ride that bike, even after she was seriously hurt and even after she complained to you about the pain that she was in.
I find that each of you are equally culpable for the acts of commission first by putting her on the bike at all and second, continuing to do so despite her injuries, and the acts of omission by not giving her appropriate medical treatment when she was gravely injured to the point of death by not summonsing medical help for over eight hours.
You, Ms Polkinghorne, consistently placed your own interests over that of your child. In the end you were prepared to allow your child to die rather than exercise any proper parental responsibility for her care, protection and welfare.
You, Mr McPartland, by your controlling, abusive behaviour set up a dynamic whereby Chloe did your bidding in relation to getting on that bike again and again irrespective of her needs and wishes.
It is these combined actions which have undoubtedly led to the death of Chloe Valentine.
Her Honour then dealt with the antecedents of each of the respondents and the Director of Public Prosecutions makes no complaint about that. Her Honour then proceeded to fix head sentences of seven years and eight years for McPartland and Polkinghorne respectively and refused to suspend those sentences. As to McPartland, her Honour stated:
I turn now to the sentence which I must impose. The sentence imposed must reflect the fact that by your conduct a human life has been lost. The Court must impose a sentence which reflects the value and dignity of the life lost, particularly taking into account that the life lost here was the life of a defenceless, vulnerable child. Your neglect of Chloe was not an isolated failure but a course of conduct over several days. Chloe was entrusted into your care. In these circumstances, your offending is in a serious category for the offence of manslaughter.
Your offending included acts of commission as well as acts of omission. In the end, I find you both equally culpable. The reasons are slightly different. However, I can find no basis to distinguish your level of culpability for this crime.
There is no specific range of penalty that applies to manslaughter. It is obviously an offence that can be committed in numerous ways and the culpability of those who commit it can vary markedly.
In the case of both of you, I have found that the circumstances in which you committed this crime are grave and your culpability is equal. That conduct must result in a sentence of imprisonment.
The starting point which I have selected for the imposition of head sentences in each case is nine years. I turn now to sentence Mr McPartland.
After taking into account your plea of guilty, I impose a head sentence of seven years.
…
I have considered whether the circumstances justify suspension of the sentence. Taking into account the seriousness of the crime of manslaughter, the particular circumstances in which you committed this offence, together with all of the other circumstances detailed during submissions. There is not, in my view, good reason to suspend that sentence.
As to Polkinghorne, her Honour stated:
I turn now to your sentence, Ms Polkinghorne. Adopting the same starting point, after the discount for your plea of guilty, I impose a head sentence of eight years. … I have considered the question of suspension in your case as well. However, I do not consider that any of the circumstances constitute good reason to suspend the sentence of imprisonment.
Her Honour also fixed the non-parole periods referred to above and there is no complaint by the Director of Public Prosecutions as to the relationship of those periods to the head sentences.[3]
[3] It goes without saying that if the head sentences were to be increased, the non-parole periods would also be subject to being increased.
The application by the Director of Public Prosecutions for permission to appeal
The application by the Director of Public Prosecutions for permission to appeal is identical in the case of each accused. Apart from the formalities of setting out the sentences imposed by her Honour (as above), the application simply states:
The ground upon which leave to appeal is sought is that the sentence is manifestly inadequate.
In South Australia, a particular Judge is entrusted with the heavy burden of sentencing for serious crimes such as the present. We do not have a system whereby the determination of sentence by that Judge is the mere prelude to the same work being carried out all over again from the start by a further panel of three Judges upon the filing by the prosecution of a document containing the above assertion. The prosecution is only granted permission to appeal against that sentence in exceptional circumstances.
What the present application does not assert is as important as what it does assert. It does not assert that the sentencing Judge committed legal error in the way her Honour approached or carried out the sentencing process; or mistook what the facts were; or failed to have sufficient regard to the facts; or failed to have proper regard to some identified relevant factor; or wrongly relied on some identified irrelevant factor; or in some other identified way, paid insufficient care or attention in carrying out her duties. As was stated in the plurality judgment in Hili v The Queen:[4]
[58]The single ground of appeal advanced by the Director in each appeal to the Court of Criminal Appeal was that the sentences imposed at first instance were manifestly inadequate. That is, the error which the Director asserted that the sentencing judge had made was of the last kind mentioned in House v The King. By asserting manifest inadequacy, the Director alleged that the result embodied in the sentencing judge’s orders was “unreasonable or plainly unjust”. The Director did not allege that any specific error could be identified (as would be the case if the sentencing judge were said to have acted upon wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistaken the facts or not taken into account some material considerations). Rather, the Director asserted that it was to be inferred from the result that there was “a failure properly to exercise the discretion which the law reposes in the court of first instance”.
[59]As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to sayin Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. …
[4] (2010) 242 CLR 520, 538-539.
It is possible for permission to be granted, and an appeal to be allowed, on the basis that the sentence imposed is “manifestly inadequate” but the Director of Public Prosecutions has a high hurdle to clear if this is the only complaint relied upon; the Director of Public Prosecutions must establish in such cases that the sentence imposed is definitely below the lowest end of the range of sentences that could be imposed on the facts before the sentencing Judge.[5]
General principles relating to the grant of permission to the Director of Public Prosecutions to appeal
[5] Such a finding does not, of course, involve the positive delineation of exactly what the “available range” is. In Barbaro v The Queen (2014) 88 ALJR 372, 377 [28] the plurality judgment of the High Court stated: “Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an “available range” of sentences, stating the bounds of an “available range” of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall.”
In The Queen v R, AW I made the following remarks, to which I adhere, concerning the correct approach to a prosecution appeal:[6]
[6] (2012) 113 SASR 179, 190 [42]. Nyland J agreed.
[35]Although s 340 of the Criminal Law Consolidation Act has the effect of restricting the effect of double jeopardy principles on the disposition of an appeal where permission has been granted, it has no effect on the antecedent question of whether permission to appeal should be granted.
[36]A strict approach continues to be taken to the granting of permission to the prosecution to appeal against sentence. In Malvaso v The Queen, the significance of the requirement of permission to appeal arose in a particularly acute form. The Court of Criminal Appeal had purported to allow a prosecution appeal against sentence but had not granted the required permission to appeal, the parties erroneously assuming that a single Judge had previously done so. Deane and McHugh JJ stated:
In such a case, the court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified.
[37]In Everett v The Queen, Brennan, Deane, Dawson and Gaudron JJ approved the passage extracted from Malvaso above and stated:
In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen:
an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.
The reference to ‘matter of principle’ in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting ‘error in point of principle’. [Footnotes omitted]
[38]Their Honours further emphasised that the power to grant permission to appeal “should be exercised only in the rare and exceptional case” and stated:
A court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.
…
[41]In R v Paynea joint judgment of five members of the South Australian Court of Criminal Appeal stated:
[86]The principles to be applied to applications by the Director of Public Prosecutions for leave to appeal against a sentence are well known. Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained: see Everett v The Queen (1994) 181 CLR 295 at 299-300; Griffiths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212 at 212-213. [Footnote omitted]
The crime of manslaughter
It is well recognised that the sentencing discretion for the crime of manslaughter is very wide in keeping with the very broad range of seriousness of the criminal offending that may attach to any particular case.
In R v Jones,[7] I considered the correct approach of an appellate court to an application by the prosecution to appeal against sentence for the crime of manslaughter. Jones involved a plea of guilty to the more serious form of manslaughter by unlawful and dangerous act on facts not far short of the crime of murder; the respondent had pointed a loaded rifle (which was in poor operating condition) at the deceased and cocked it but was sentenced on the basis that it thereafter discharged without the respondent intending that it should. The respondent had a particularly bad criminal record and was sentenced by a Supreme Court Judge to a head sentence of nine years with a non-parole period of five years. The application by the Director of Public Prosecutions for permission to appeal was refused. I there said:[8]
[7] (2010) 108 SASR 479.
[8] (2010) 108 SASR 479, 505-506.
[146]The sentence passed by his Honour was a quite substantial sentence of immediate imprisonment. In my view, one of the reasons why it is particularly inappropriate in a case of manslaughter to suggest that such a sentence is so disproportionate to the seriousness of the crime as to “shock the public conscience” or as to “shake the public confidence in the administration of justice” is that such phrases predicate some objective comparison between an instant sentence and an established norm together with a consequent finding of grave disproportionality as between the two. Such an assumption tends to ignore the fact that sentencing for the crime of manslaughter has always been recognised to be largely incompatible with the formulation of tariffs and standards. The matter was thus stated by Street CJ in 1925 in R v Withers:
There is no offence in which the permissible degrees of punishment cover so wide a range, and none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty.
[147]This fact was by no means new in 1925 and rightly continues to be stressed today. Thus in R v AngusDoyle CJ stated:
[39]… the circumstances of manslaughter vary greatly. Manslaughter is not the kind of offence for which the court can establish a general standard of punishment. Different instances of the offence may well call for a significantly different sentencing approach. Nor does this particular instance of the offence represent an instance of what can be regarded as a distinct category, likely to recur sufficiently often and in sufficiently similar circumstances to warrant an attempt to establish a standard for the particular category of manslaughter.
[148]Similarly, in the High Court decision in R v Lavender, Gleeson CJ, McHugh, Gummow and Hayne JJ stated:
The circumstances that at all material times the legislation as to homicide only may be sufficient, is consistent with the common law position that malice is not a necessary element of manslaughter. For more than a hundred years, judges in all Australian jurisdictions, and in England, have observed that, of all serious offences, manslaughter attracts the widest range of possible sentences. The culpability of a person convicted of manslaughter may fall just short of that of a person guilty of murder or, as s 24 recognises, it may be such that a nominal penalty would suffice.
[149] In the relatively recent decision of the Court of Criminal Appeal in R v Tracey similar observations were made. Doyle CJ there stated:
The application for leave to appeal raises no issue of sentencing principle. Nor is this an appropriate case for the court to indicate a sentencing standard. The offence of manslaughter occurs in circumstances that vary widely. It is not practical to establish a standard or benchmark that will accommodate the variations: R v Angus [2004] SASC 317 at [39]. Nothing would be achieved by trying to do so. Nor do these particular offences represent a distinct category of manslaughter for which a benchmark or sentencing standard can usefully be indicated. Nor has the sentence been shown to be so disproportionate to the seriousness of the crime as to require intervention. That being so, it is not appropriate to grant leave to appeal: R v Payne [2004] SASC 160; (2004) 89 SASR 49 at [86].
[150]Thus the absence of a general standard of sentence for the crime of manslaughter should be seen as an inhibiting factor on the granting of permission to the prosecution in the present case.
The loss of a child
The Court is well familiar with the fact that, particularly in the case of the loss of a beloved young child, the reaction of persons close to the child will likely be that the sentence imposed on those responsible for the death is “not enough”, no matter what that sentence happens to be. This is entirely understandable and is perhaps related to the fact that nothing, including the longest sentence, can be enough to bring the child back to life.
The members of the Court have read, and had close regard to, ten detailed victim impact statements and their annexures, as did the sentencing Judge. They are undoubtedly the sincere outpourings of the grief of the authors. It is difficult not to share that grief and to react against the respondents in an angry way. It is no doubt cold comfort for the authors, and others close to the child, to be reminded that the Courts must not act in an angry way but in a measured, consistent way.
The persons responsible for the death have pleaded guilty and have been sentenced to substantial, unsuspended prison terms which they commenced serving at the time of sentencing and continue to serve. Those sentences can only be revisited by applying the law and not emotion.
“Shocking the public conscience”
Finally, I refer to a matter of some importance to the correct approach to applications by the Director of Public Prosecutions for permission to appeal against sentence, namely the couching of prosecution submissions in terms of “shocking the public conscience”. The Director adopted that approach in both his written outline of argument and his oral submissions.
Some years ago now, the phrase “shock the public conscience” was originally used to stress the great height of the hurdle to be overcome before a prosecution appeal could succeed. However, it later came to be used in a rather emotive fashion, such as to be unhelpful to precise analysis. The use of the phrase was positively discouraged by the Court of Criminal Appeal in the decision of R v Siozios where, Perry J (with whom Doyle CJ agreed) stated: [9]
[20]In considering whether it is proper to give leave to the Crown to appeal against sentence, I am not sure that the expression ‘shock the public conscience’ by reference to the sentence under appeal, should now be, or form part of, the appropriate test. There is much evidence to suggest that these days, the public conscience is easily shocked. It is an emotive expression which I tend to think ought no longer to be regarded as an appropriate test to apply in determining whether leave to appeal against sentence should be granted in favour of the Crown.
[Footnotes omitted.]
[9] (2004) 236 LSJS 88, 89.
In both Jones[10] and R, AW,[11] I called attention to those remarks by Perry J and specifically endorsed them. In Jones, I stated:[12]
Although his Honour was no doubt intending to postulate a very high hurdle to be overcome, the phrase has since come to be used on occasions in a highly emotive fashion which may tend to blur rather than sharpen analysis.
[10] (2010) 108 SASR 479, 503.
[11] (2012) 113 SASR 179, 190 [42]. Nyland J agreed.
[12] (2010) 108 SASR 479, 503.
In DPP v Fucile and Tran,[13] the Victorian Court of Criminal Appeal endorsed the above passage in Siozios. The Court noted that counsel for the Victorian Director of Public Prosecutions had used the expression ‘shock the public conscience’ in argument and stated:[14]
[13] [2013] VSCA 312, [99]-[102] (Maxwell P and Weinberg JA); Tate JA agreed.
[14] DPP v Fucile and Tran [2013] VSCA 312, [101]-[102].
[99]It should perhaps be noted that the ‘shock the public conscience’ test has been the subject of judicial criticism.
[100] In R v Siozios, Perry J, with whom Doyle CJ agreed, observed:
In considering whether it is proper to give leave to the Crown to appeal against sentence, I am not sure that the expression ‘shock the public conscience’ by reference to the sentence under appeal, should now be, or form part of, the appropriate test. There is much evidence to suggest that these days, the public conscience is easily shocked. It is an emotive expression which I tend to think ought no longer to be regarded as an appropriate test to apply in determining whether leave to appeal against sentence should be granted in favour of the Crown.
[101]In R v Jones, Peek J endorsed the South Australian Full Court’s earlier disapproval of the use of the phrase ‘shock the public conscience’ as one possible limb of the test for granting leave to appeal. He said:
... although his Honour was no doubt intending to postulate a very high hurdle to be overcome, the phrase has since come to be used on occasions in a highly emotive fashion which may tend to blur rather than sharpen analysis.
[102]On the state of the authorities that bind this Court, Mr Silbert was clearly entitled to invoke the phrase in support of his submission. In our view, however, it should no longer be used in this area of discourse. The very notion of ‘the public conscience’ is itself of uncertain content, and its invocation sheds no light on the task which the appellate court must perform. (Emphasis added)
The Victorian Court of Criminal Appeal was clearly correct in stating in Fucile and Tran that this notion of “the public conscience” is “itself of uncertain content”. However, one is at least certain that neither the Courts, nor the Office of the Director of Public Prosecutions, nor the South Australian Police, have or claim to have, the role of being “the public conscience”; the respective roles of these institutions are well defined and well known.
In so far as other persons or entities may purport to declare the nature or content of “the public conscience”, such declarations will usually be seen, on calm reflection, to be inconsistent both as between the various declarants and as between declarations made on different occasions by the same declarant.
The observations of Doyle CJ directed to the closely related, and equally nebulous, term “the public opinion”, have analogous application to references to “the public conscience”:[15]
[14]The judge can take account of public attitudes to the type of crime in question, and public concern about the prevalence of a type of crime or about its effects. In this general way public opinion is relevant. A sentencing judge can also have regard in a general way to a public expectation that serious crime will attract severe punishment. But it is not lawful for a judge to try to identify and then impose the sentence that the public expect. The judge must sentence according to law, not according to the public expectation. In any event, there is no way of knowing reliably what the public as a whole want or expect in a particular case.
[15]On appeal, the fact that many people have publicly criticised a sentence as inadequate cannot influence the court. If the sentence is within an appropriate range, the court cannot interfere. If the court does interfere, it does so because an error has been made, not because the sentence has been widely criticised. (Emphasis added)
[15] R v Nemer (2003) 87 SASR 168, 171.
To be clear then, legal debate as to whether a person who has already been sentenced by a Judge should later have that sentence increased must be conducted in terms that are non-emotive and have substantive content. Terminology such as “shock the public conscience” lacks these essential features. I agree with the Victorian Court of Appeal that this terminology “should no longer be used in this area of discourse”.[16]
[16] [2013] VSCA 312, [101]-[102].
Consideration of the application by the Director of Public Prosecutions
A significant part of the argument on the hearing of the application was devoted to the previous decision in R v Johnston[17] where, in circumstances comparable to the present case, this Court set aside a head sentence of ten and a half years with a non-parole period of six years for manslaughter by criminal negligence and substituted a head sentence of seven and a half years with a non-parole period of four and a half years.
[17] (2007) 173 A Crim R 540.
The Director submitted that the present circumstances are greatly worse than the circumstances in Johnston and that therefore that decision positively indicates that the sentences here should be significantly higher. On the other hand, counsel for the respondents submitted that a correct analysis of the facts in Johnston positively militated in favour of dismissal of the application.
The Director and counsel for the respondents also referred to a number of other local sentencing decisions (with counsel for the respondents also referring to a large number of interstate decisions), all said to bolster the respective positions of the parties.
The correct approach to the use of comparative sentences
There are a number of principles to be observed when referring to comparative sentences, amongst which are the following of present relevance.
First, reference is made to comparative sentences as a means to enhance consistency of sentencing. In a passage recently adopted by a joint judgment of the High Court,[18] Gleeson CJ stated in Wong v The Queen:[19]
All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.
[18] The plurality judgment in Hili v The Queen (2010) 242 CLR 520, 535 [47].
[19] (2001) 207 CLR 584, 591 [6].
Second, consistency does not equate to bare statistics of terms of imprisonment such as might appear in a chart or graph. As the plurality judgment of the High Court stated in Hili v The Queen,
[w]hat is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression.[20]
[20] (2010) 242 CLR 520, 535.
Third, even assuming that adequate attention is given to the choice of properly comparable sentences, the range that such sentences might seem to demonstrate is not prescriptive. Thus the plurality judgment of the High Court stated in Hili v The Queen:[21]
In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: “Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.” But the range of sentences that have been imposed in the past does not fix “the boundaries within which future judges must, or even ought, to sentence”. Past sentences “are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence”(Emphasis added). When considering past sentences, “it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned” [Footnotes omitted]
[21] (2010) 242 CLR 520, 537. See also Munda v WA (2013) 87 ALJR 1035, 1042 [39].
Fourth, as to interstate authorities, one must bear in mind the comments of the Court in R v Faehrmann; R v Moore; R v Price-Austin:[22]
In view of the limited occasions upon which this Court has considered sentences for trafficking in large quantities of cannabis in relation to the principals of an operation, both parties made extensive reference to decisions of intermediate courts of appeal interstate. The Court has reviewed the large number of cases from all State and Territory jurisdictions (bar the ACT) to which its attention was directed. The very task of reviewing this array of decisions has reinforced, in our view, the very real limitations of such a comparison exercise. The differences between the various jurisdictions in nature (elements) of offences charged, in penalty regimes and in local approaches to sentencing, including, but not limited to, the extent of any leniency offered for a plea and in what circumstances and whether that leniency is to be reflected in the head sentence or only the recommended period before parole might be considered, are legion. When this is added to the fact that every case is different, as to the circumstances of the offending and the personal circumstances of the offender, it is not surprising that the most that can be hoped for when undertaking such a review is the obtaining of a “feel” for the type of sentences imposed in other jurisdictions in serious cases of cannabis trafficking.
[22] [2014] SASCFC 25, [48] (Kourakis CJ, Blue and Nicholson JJ).
In fairness to the respondents, the differences between State legislative sentencing regimes, at least in relation to head sentences, may be less marked in cases of murder and manslaughter than in offences such as “trafficking in cannabis” as was under consideration in R v Faehrmann; R v Moore; R v Price-Austin.
The effect of comparative sentences in the present case
Comparing complex matrices of facts will never be simple or straightforward; some factors will militate for, and others against, a proposition that one instance of offending is “more serious” overall than another.
As for the decision in Johnston, I must say that I am unable to agree with the Director’s view that the facts here are clearly worse than in that case; indeed I think that there is a strong argument that, at least in a number of respects, the reverse is true.[23] I would conclude that Johnston is simply an example of a South Australian case, with comparable facts to the present case, where the sentence imposed on appeal by this Court was very similar to the sentences imposed on the present respondents. It tends to support, but is not determinative of, the proposition that the present sentence cannot be demonstrated to be manifestly inadequate.
[23] Thus see the combination of the features discussed at [24]-[26], [29], [33]-[36], [42]-[43], [48], [61]-[62] of the judgment of White J in (2007) 173 A Crim R 540, 545, 546, 546-547, 548, 551.
I have reached the same conclusion in relation to the many other manslaughter sentencing decisions referred to by counsel. Although there are common factors in those decisions (foremost, the loss of a human life), all were eventually decided on their own unique factual matrix. The decisions simply do not go close to establishing that the sentencing Judge here imposed a sentence that is manifestly inadequate.
Conclusion
Quite apart from previous sentencing decisions (which clearly will not alone be determinative), I have closely considered the matters raised by the Director’s written and oral submissions including the need for the protection of vulnerable children; the need for personal and public deterrence; the gravity of the offending; and the limited application of the mitigating factors of rehabilitation and reform.
I stress that there can be no precise or mathematical processing of adding or subtracting units of severity of sentence for each of the innumerable permutations of facts that may arise in individual cases. Approaching this case in the way that is required by law, I find that it is far from established that it should be inferred that the Judge gave inadequate weight to the above matters alone or in combination. As was stated in the plurality judgment of the High Court in Barbaro v The Queen:[24]
[34]Fixing the bounds of a range within which a sentence should fall or within which a sentence that has been imposed should have fallen wrongly suggests that sentencing is a mathematical exercise. Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts. As the plurality said in Wong v The Queen, “[s]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform”.
[24] (2014) 88 ALJR 372, 378.
Disposition of the application
I consider that, if permission to appeal were to be granted, the substantive appeal would inevitably fail for the reasons already given. Accordingly, I would dismiss the application.
STANLEY J: I would refuse the Director’s application for leave to appeal. I agree with the reasons of Peek J and the further observations of Nicholson J.
NICHOLSON J. I agree that the Director’s application for leave to appeal should be refused for the reasons given by Peek J. I also am of the view, essentially for the reasons his Honour has given, that the phrase “shock the public conscience” in this area is unhelpful and potentially distracting such that its use should be avoided. I add to the judicial observations on this topic, referred to by Peek J, what I said in R v Nedza.[25]
[25] [2013] SASCFC 142 at [65]-[66].
The proper approach to a Crown appeal against sentence, to be observed by an appellate court, is well settled. Permission to appeal is to be granted only in rare and exceptional circumstances.[26] This State’s Court of Criminal Appeal (consisting of five justices)[27] not so long ago summarised the proper approach in the following terms.[28]
[26] Everett v R (1994) 181 CLR 295 at 299-300.
[27] R v Payne (2004) 89 SASR 49, Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ.
[28] At [86].
The principles to be applied to applications by the Director of Public Prosecutions for leave to appeal against a sentence are well known. Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained: see Everett v The Queen (1994) 181 CLR 295 at 299-300; Griffıths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212 at 212-213.
In many cases, intervention has been said to be justified where a particular sentence is so far below the appropriate range of sentences for a particular crime that, if allowed to stand, it would “shock the public conscience”. One has a general appreciation of that to which this notion is directed. However, I do not find it easy to articulate what it means to “shock the public conscience” given the inherent difficulties in identifying what constitutes the “public” conscience in a way that is not simply a reflection of the views of those persons or groups of persons who happen to make their views known publically and in a way that separates it from the conscience of the Judge hearing the appeal. I prefer the formulation used in R v Payne which is directed to a sentence that is “so disproportionate to the seriousness of the crime as to require intervention so that… public confidence in the administration of justice can be maintained.
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