R v McPherson

[2011] SASCFC 105

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MCPHERSON

[2011] SASCFC 105

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Stanley)

29 September 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - ADJOURNMENT - GENERALLY

Appeal against sentence - appellant found guilty by a jury of aggravated serious criminal trespass in a place of residence and aggravated assault - appellant sentenced to a term of four years' imprisonment with a non-parole period of 18 months - appellant also sentenced to one month imprisonment relating to a breach of bond to be served concurrently with the four-year sentence - application for an adjournment for the appellant to obtain psychological reports in respect of the appellant and his child refused by sentencing Judge - whether the appellant was denied procedural fairness - whether all material relevant to sentencing was before the Court.

Held:  Appeal allowed - sentencing discretion miscarried - matter remitted to trial Judge to resentence appellant - appellant denied the opportunity of providing relevant personal information to the Court - the matters referred to in the psychologist's reports establish the need for resentencing the appellant.

Criminal Law Consolidation Act 1935 (SA) s 353(4), s 353(5), referred to.

R v MCPHERSON
[2011] SASCFC 105

Court of Criminal Appeal:       Gray, Sulan and Stanley JJ

THE COURT:

1. This is an appeal against sentence.

2. On 17 March 2011, the defendant and appellant, Clay Justin McPherson, was found guilty by a jury verdict following a trial in the District Court of the offences of aggravated serious criminal trespass in a place of residence and aggravated assault.  The circumstance of aggravation in each case was that he was in company with others.  The appellant was sentenced together with two co‑accused.

3. The trial Judge sentenced the appellant to a term of four years’ imprisonment.  A non-parole period of 18 months was fixed.  The appellant acknowledged a breach of bond imposed for an earlier offence of resisting police.  For this offence, he was sentenced to one month imprisonment, to be served concurrently with the four-year sentence.

4. The appellant complained on appeal that he had been denied procedural fairness and that as a consequence material relevant to sentencing was not before the Court.  It was said that the sentencing process proceeded without regard to relevant material and that as a consequence the sentencing discretion miscarried.  It was further complained that the sentence was manifestly excessive.

5. On the hearing of the appeal, the Director conceded that there had been a denial of procedural fairness and that in the circumstances the sentence imposed should be set aside and the appellant resentenced.  On 19 September 2011, the Court allowed the appeal and remitted the proceedings to the District Court Judge to allow the appellant to be resentenced.  The Court considered that the Director’s concession was correctly made.  Our reasons for these orders follow.

6. The offending occurred on 2 December 2008.  The appellant became aware that C, the victim of the assault, had earlier that day gone to the home of the appellant’s mother looking for the appellant in order to recover monies that he claimed were owing by the appellant.  The appellant was not at home.  At the insistence of C, the appellant’s mother went to an ATM, withdrew the amount claimed and handed it to C.

7. When the appellant heard of these events he became angry.  He claimed that no monies were owing and he was upset about the manner in which C had approached his mother.  He drove with his co-accused Darren Bell and Michael Simmonds to C’s home.  The appellant was carrying a knife and Simmonds a bottle of beer.  The appellant and Simmonds went to the front door.  Bell remained in the vehicle.  C’s partner opened the front door.  C also came to the front door.  The appellant, in the company of Simmonds, threatened C who immediately returned the money. 

8. The appellant then proceeded to the back of the house where he was joined by Bell.  They entered the house through the back door with the intent of confronting C.  In the meantime Simmonds had pushed the front door open and in doing so had struck C’s partner.  She was at this time nine months’ pregnant.  Simmonds pleaded guilty to assault as a result of this incident.  Having entered, Simmonds proceeded through the house to the kitchen, where in the presence of the appellant and Bell, he hit C over the head with the bottle of beer that he had been carrying. 

9. The Judge sentenced the appellant on the basis that he was engaged in a joint enterprise with Simmonds and Bell to assault C.  As the three men left the house, one of them smashed the window of C’s vehicle and another threw a knife which became embedded in the front door.  This conduct was intended to intimidate C.

10. The appellant had been charged with the aggravated assault of C’s partner.  He was acquitted on this charge.  As noted above he was convicted of the other two counts of aggravated serious trespass at a place of residence and of the aggravated assault of C.  The convictions were recorded on 17 March 2011.  The matter was stood over until 30 March 2011 for sentencing submissions.  The Judge did not revoke the appellant’s bail. 

11. On 18 March 2011 counsel for the appellant informed the Judge that he was instructed to seek a suspended term of imprisonment and indicated that the Judge would be assisted by a pre-sentence report and psychological reports.  Counsel requested the Judge to order reports from a psychologist.  The Judge declined to do so, saying “No I can’t do that.  You have to do that”.  Counsel then informed the Judge that it may be difficult to obtain the relevant reports while the Judge remained on circuit in Mount Gambier.  The Judge responded by indicating that he intended to hear sentencing submissions from the three defendants on 30 March 2011.  Counsel’s request for an adjournment to obtain a psychological report was refused. 

12. On 30 March 2011 the matter was called on in Mount Gambier.  Counsel informed the Judge that funding had been approved to obtain psychological reports in respect of both the appellant and his young son to assist the Court when sentencing.  Counsel informed the Court that appointments had been arranged with the psychologist on 14 April 2011 and the reports would be available in early May 2011.

13. After hearing sentencing submissions from counsel for the other co-defendants, the Judge returned to the question of the application for an adjournment to obtain psychological reports.  In the course of the exchange between counsel and the Judge, the following occurred:

    [COUNSEL]:      You will recall that when my client was convicted and we adjourned I asked you if your Honour wanted to order those reports, and your Honour, within the exercise of your discretion, declined to do so at that time.

    HIS HONOUR:    There is a protocol that the court doesn’t order psychological reports, they have to be paid for by Legal Services Commission, that’s why I didn’t order it and I won’t order it now.  Pre sentence reports are ordered by the courts but not psychological reports.

    [COUNSEL]:      I am sorry that is a protocol that slipped by me because judges have ordered them in the past.  Be that as it may, the fact is that he is undergoing psychiatric counselling, Mr Smith can do a report about him and the relationship with his father, which goes to those issues.

14. His Honour then observed:

    HIS HONOUR:    I have got two other accused who pleaded guilty at an early stage and have been waiting for quite a long time for Mr McPherson’s trial to be concluded.  Now it’s not Mr McPherson’s fault that it takes so long to get a trial on, but he’s known, you’ve known, your solicitors have known all the time that were he to be found guilty that one of the critical submissions you’re going to make is his son’s dependence on him.  Now there is ample – well, not ample but there is some sources from which that information might have been obtained and Mr Gittins, although a therapist, as you point out, is one of the people who could have looked into that.

    Now the trial finishes and I have made it absolutely clear at the time that I wanted the matter concluded this month.  People have been waiting for quite a long time, this is an old matter relatively, 2008 is when these crimes were committed, and goodness knows how I’m going to go about sentencing if I adjourn it.  It’s not just I who catches a plane down here, the whole court has to come down, or alternatively all three accused go up to Adelaide.

    Counsel submitted that, in order to satisfy the Judge that this case was an exceptional case, it was necessary to have a report from a qualified person.  The Judge declined to grant an adjournment. 

15. The Judge was not prepared to order psychological reports apparently because there existed a protocol which deals with the ordering by the Court of psychological reports.  We have not been advised of the exact terms of the protocol, but it seems to relate to whether the Court is to pay for the preparation of psychological reports.

16. We observe that a sentencing Judge has a wide discretion to order any report that the Judge considers may assist the Judge in determining a sentence.  It is to be borne in mind that in the present proceedings the issue before the Judge was whether the appellant should be deprived of his liberty.  It does not follow, however, that in every case in which it is requested, the Judge is required to order a report.  On the other hand, there are circumstances in which a Judge will be assisted by expert psychological opinion.  A Judge cannot be fettered in his or her discretion to order such reports because of a protocol relating to funding. 

17. On 18 March 2011, the Judge was aware that it would take time for the appellant to apply and secure funding to obtain the necessary reports.  If the Judge considered that time was as important as it appears he did, then he could have ordered an urgent report from the psychologist.

18. When the Judge refused to order reports, the appellant’s legal advisors obtained funding and made arrangements to secure the reports within a reasonable time.  The Judge was in error in refusing an adjournment. 

19. It was clear that the appellant’s advisors considered the reports to be highly relevant.  Reports have now been obtained from a psychologist with respect to both the appellant and his young son.  The content of those reports would appear to be relevant material to be considered by a Judge when sentencing.  The reports contain information and opinions relevant to the length of any term of imprisonment to be imposed and the fixing of a non-parole period.  They also raise matters that would appear to enliven the discretion to suspend any term of imprisonment that may be imposed. 

20. It is not entirely clear why the Judge proceeded to sentence without the assistance of the psychological reports.  The Judge’s remarks on the transcript suggest that he may have been concerned about delaying the sentencing of the co-defendants.  If the Judge had this concern, it was open to him to proceed to sentence the co-defendants immediately and defer sentencing the appellant.  By 30 March 2011, the Judge had heard the evidence and submissions from all counsel as to the factual bases upon which he should proceed.  He had all the relevant personal information in respect of the other defendants.  There was no compelling reason to delay their sentencing.  As to the appellant, the outstanding information was personal to him and there was no reason why, in this case, all defendants had to be sentenced at the same time. 

21. In our view, the sentencing discretion miscarried.  The appellant was denied the opportunity of providing relevant personal information to the Court. 

22. We consider that there are matters referred to in Mr Smith’s reports which establish the need for re-sentencing of the appellant.  Those matters include: the close and special relationship with his son and the effect of separation of father and son; the pre-disposition to self-harm; the diagnosis of chronic obsessive compulsive behaviour; symptoms of chronic post-traumatic stress disorder; major depressive disorder; the treatment recommended for the disorders and that such treatment cannot be adequately delivered in a custodial environment; the risk of self-harm if incarcerated; the disruption to the family if imprisonment was away from Mount Gambier; the genuine remorse shown; the psychological conditions from which the son is suffering; and, the possibility that the son will engage in self-harm.

23. Having found error, the Court must consider whether a different sentence should have been passed.  If the Court concludes that a different sentence should have been passed, it must quash the sentence and either substitute such other lesser sentence as the Court thinks ought to have been passed, or quash the sentence and remit the matter to the trial court for resentencing.[1] 

    [1]    Criminal Law Consolidation Act 1935 (SA) s 353(4) and (5).

24. We formed the view that the Judge, who heard the trial and sentenced the other defendants, should resentence the appellant.  The Judge heard submissions on behalf of all defendants.  The Judge had formed a view about the appellant without the opportunity to consider the reports which have now been obtained.  The Judge is better placed to reconsider whether, in light of the reports now available, a lesser sentence or non-parole period should be imposed, or whether he would find good reason to suspend the sentence.

25. We, therefore, allowed the appeal, quashed the sentence and remitted the proceeding to the Judge to resentence the appellant.