R v McPartland and Polkinghorne

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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…

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Details
Case
[2014] SASCFC 84
Decision Date

CaseChat Overview and Summary

This case concerned an application by the Director of Public Prosecutions for leave to appeal against sentences imposed on the respondents, McPartland and Polkinghorne, by a sentencing judge. The appeal was heard by Peek, Stanley, and Nicholson JJ of the Supreme Court of South Australia, Court of Criminal Appeal. The core of the dispute revolved around whether the sentences imposed were manifestly inadequate, justifying the Director's intervention.

The legal issues before the Court were primarily concerned with the principles governing Crown appeals against sentence. Specifically, the Court had to determine the criteria under which an appellate court should interfere with a sentence imposed by a trial judge, particularly when the appeal is brought by the prosecution. This involved considering the proper approach to comparative sentencing, the role of sentencing statistics, and the circumstances in which a sentence might be deemed so disproportionate as to require correction to maintain public confidence in the administration of justice.

The Court's reasoning emphasised that sentencing is not a precise or mathematical exercise, but rather involves a balancing of various objectives and considerations as outlined in the relevant sentencing legislation. The judges affirmed that appellate courts should only grant leave to appeal in rare and exceptional circumstances, such as to establish a matter of principle or to correct a sentence that is so disproportionate to the crime's seriousness as to undermine public confidence. The Court noted that the phrase "shock the public conscience" was unhelpful and potentially distracting, preferring instead to focus on whether a sentence is so disproportionate as to require intervention for the maintenance of adequate standards of punishment and public confidence. The Court also stressed that comparative sentencing decisions should be treated with caution, as each case is decided on its unique factual matrix, and consistency does not equate to bare statistics.

Ultimately, the Court concluded that the Director had not established that the sentences imposed were manifestly inadequate. The Court found that the sentencing judge had adequately considered the relevant factors, and that the circumstances of the offending did not warrant interference. Accordingly, the application for leave to appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J NICHOLSON J
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. 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.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J, NICHOLSON J

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.