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…
Keep reading for free
Create a free CaseChat account to read R v McPartland and Polkinghorne and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2014] SASCFC 84
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.