R v Mee

Case [2017] SASCFC 173

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MEE

[2017] SASCFC 173

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Parker)

22 December 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - PARITY BETWEEN CO-OFFENDERS

Appeal against sentence – appellant pleaded guilty to one count of aggravated criminal trespass contrary to s 170A of the Criminal Law Consolidation Act 1935 (SA) and to one count of aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) – appellant sentenced to 10 months, three weeks and three days’ imprisonment – co-accused pleaded guilty to one count of aggravated criminal trespass and two counts of aggravated assault and sentenced to 13 months and two weeks’ imprisonment with a non-parole period of seven months – appellant and co-accused’s sentences were suspended – whether appellant’s sentence is manifestly excessive in that sentence of imprisonment imposed and conviction recorded – whether sentencing Judge erred in finding that the appellant had a tendency to violence – whether sentencing Judge made errors relevant to the sentencing basis and failed to put the appellant on notice in relation to an intention to make adverse findings – whether there is disparity between the appellant’s sentence and that of the co-accused.

HELD (per Kourakis CJ, Parker J agreeing):  The Judge did not err in imposing a sentence of imprisonment – sentence imposed manifestly excessive – appellant resentenced to 18 weeks’ imprisonment.

HELD (per Bampton J): Grounds 1, 2 and 4 should be dismissed and permission to appeal on proposed ground 3 refused.

Criminal Law Consolidation Act 1935 (SA) s 170, s 20; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 16, s 39, referred to.
R v Perre (1986) 41 SASR 105; R v Nemer (2003) 87 SASR 168; Lowe v The Queen (1984) 154 CLR 606; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; House v The King (1936) 55 CLR 499, considered.

R v MEE
[2017] SASCFC 173

Court of Criminal Appeal:  Kourakis CJ, Bampton and Parker JJ

  1. KOURAKIS CJ:      This is an appeal against a suspended sentence of imprisonment of 10 months, three weeks and three days imposed on convictions for offences of aggravated criminal trespass and aggravated assault.

  2. I gratefully adopt the comprehensive account given in the judgment of Bampton J of the evidentiary material placed before the Judge for the purposes of sentencing.

  3. I summarise the findings which can properly be made on the extent of the offending as follows:

    ·On the night of the offences, the appellant Mr Mee was a DJ at the party of his friend Mr Stephens.

    ·Mr Stephens’ neighbour Mr Robinson complained to the Police about the volume of the music.

    ·The…

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R v Mee [2017] SASCFC 173
Case
[2017] SASCFC 173
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, R v Mee, who pleaded guilty to aggravated criminal trespass and aggravated assault under the Criminal Law Consolidation Act 1935 (SA). The appellant was sentenced to 10 months, three weeks, and three days imprisonment, which was suspended. He appealed against this sentence, arguing it was manifestly excessive, that the sentencing judge erred in finding a tendency towards violence, and that there was an unjustifiable disparity between his sentence and that of a co-accused. The appeal was heard by the Supreme Court of South Australia, with Kourakis CJ and Parker J agreeing with the reasons of Bampton J.

The central legal issues before the court were whether the sentence of imprisonment was manifestly excessive, whether the sentencing judge had made an error in finding the appellant had a tendency to violence, and whether there was an impermissible disparity between the appellant's sentence and that of his co-accused, Mr. Stephens. The appellant also sought to appeal on the basis that the sentencing judge made errors regarding the factual basis of the sentence and failed to provide adequate notice of adverse findings.

The court found that while the offences were serious enough to warrant imprisonment, the sentence imposed on the appellant was manifestly excessive. The court reasoned that a starting point of three months for each offence, with some concurrency, was appropriate, leading to an overall starting point of 20 weeks. Applying a 10% reduction for the guilty plea, the court resentenced the appellant to 18 weeks imprisonment, affirming the suspension of the sentence on the same terms as the original order. The appeal was allowed in part, with the term of imprisonment reduced.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I would dismiss the appeal with respect to grounds 1, 2 and 4 and refuse permission to appeal with respect to proposed ground 3.Background The police attended the party at Mr Stephens’ home between 9.30 pm and 10.00 pm asking that the music be turned down. They returned between 11.30 pm and 12.00 am, again asking that the music be turned down.[3] Mr Robinson’s family was trying to sleep but the “duff, duff” music emanating from the party was very loud. Mr Robinson said in his statement that in response to his phone call, police attended Mr Stephens’ home at about 11.50 pm. The music was turned down. However, after the police left the volume was increased. Following a second phone call to police, Mr Robinson sent a text message to Mr Stephens asking that the music be turned down. Mr Robinson also rang Mr Stephens. Mr Stephens’ partner answered the phone and a terse conversation ensued. Mr Robinson and Mr Stephens then engaged in “nasty” text messaging. Mr Robinson sent text messages asking “can you turn down the music”, threatening to call the police “now I’m calling cops”, telling Mr Stephens “lose my number” and “never come here again you stupid fat cripple piece of shit with your retarded wife”. In one of his texts, Mr Stephens told Mr Robinson to “Grow the fuck up! Call the cops u dog!” and “I help u out and this is what I get!! Cheers”.[4][3] Mr Stephens’ statement dated 23 March 2016 emailed by his solicitor to police and Appendix A to the declaration of Senior Constable First Class Paul Brian Dawson.[4] Statement of Jessica Kathryn Horjus, 14 April 2016. At about 1.00 am on 31 May 2015, Mr Mee noticed Mr Stephens walking toward Mr Robinson across the cul de sac separating their homes. Mr Mee ran over to assist Mr Stephens.[5][5] Annexure 1 to the Outline of Submissions as to Sentence titled “Version of Events, Adrien Jonathon Mee”. Mr Mee saw Mr Robinson take off back inside his house and slam the front door. By the time Mr Mee caught up with Mr Stephens he was on Mr Robinson’s front porch. Mr Stephens banged on the front door breaking the door’s glass panels. Mr Stephens, Mr Robinson and Ms Griffiths swore and yelled at each other. Mr Robinson emerged from his house with a kitchen knife. Ms Griffiths also came out of the house on to the porch. A melee ensued during which Mr Stephens assaulted Mr Robinson and Ms Griffiths, Mr Stephens and Mr Mee were both stabbed with the kitchen knife by Mr Robinson. As Mr Robinson ran away down the street he was chased by Mr Stephens and Mr Mee and caught by Mr Stephens. Whilst Mr Stephens and Mr Robinson were engaged in a scuffle, Mr Mee assaulted Mr Robinson. Mr Mee suffered a one centimetre stab wound in the posterior lower right back and a four centimetre stab wound over the right lower anterolateral chest. The wounds were cleaned and sutured and he was discharged from hospital on 2 June 2015. Mr Stephens sustained stabs wounds to the left axilla and face beneath his left eye. Mr Stephens underwent several operations and was discharged from hospital approximately three weeks after the offending. Charges arising out of the stabbing were laid against Mr Robinson but later discontinued.

Evidence

Evidence Before The Court

Mr Robinson said in his interview that he believed that Ms Griffiths came along and pushed Mr Stephens off and that was when he got up and ran further down the road.Medical evidence Dr Olga Lopatko described treating Mr Robinson at the Lyell McEwin Health Service after he said that he had been assaulted by two men. He described being punched on the left side of his head, chased, thrown onto the ground and kicked in the head and the body. Upon examination, he was noted to have skin loss and scratches above his left eyebrow, approximately 0.5 cms by 1.5 cms, swelling of soft tissues and bruising on the left side of the left eye, a small split of skin on the left ear, small bruising over the soft tissue of right ear, swelling and tenderness over the back of the head and left temple, bruising over the back of the head and left temple, bruising over back of left shoulder, and small skin loss over the back of the right hand. He received the following treatment:No sutures required… wounds were cleaned, no dressing applied left to air dry… given a tetanus toxoid… given oral pain relief… discharged home.The bare and minimal agreed facts The agreed facts are bare and minimal. They are that Mr Mee attended the Robinson/Griffith home. He was present when Mr Stephens banged on the door and broke the glass panels and entered the hallway. He was present during Mr Stephens’ assaults on Mr Robinson and Ms Griffiths. He and Mr Stephens were stabbed. He chased Mr Robinson and assaulted him on the road. A sentencing judge, in the absence of detailed agreed facts, ordinarily, is required to sentence on the basis of the “sworn depositions and statements”.[9] The agreed facts in this matter are lacking in detail as to “the subsequent events on the road”. That detail is found in Annexure 1, Mr Stephens’ statement, and the prosecution statements and submissions.[9] R v Perre (1986) 41 SASR 105 at 105. Inferences to be drawn about “the subsequent events on the road” It was submitted during the hearing of the appeal that in committing the assault Mr Mee inflicted one kick and one punch. Mr Mee reported that he had been drinking during the night and had used oral amphetamines. The clear inference to be drawn from the evidence, the sentencing submissions, and Annexure 1 is that Mr Stephens was angry and aggressive when he attended the victim’s home. Mr Mee was aware of this as he had been informed of the text messages and he said he was concerned for Mr Stephens when he followed him across the cul de sac. He was present when the door was punched and glass panels broken. He remained on the porch whilst Mr Stephens was fighting with Mr Robinson and Ms Griffiths in the hallway. Once the fracas moved to the porch, it involved all those present. Mr Mee was on the porch during Mr Stephens’ assaults against Ms Griffiths and Mr Robinson. It was during this time that that Mr Stephens and Mr Mee were stabbed. Mr Stephens and Mr Mee chased Mr Robinson and Mr Stephens tackled him to the ground. While Mr Stephens and Mr Robinson were still “engaged” or in a scuffle on the street,[10] Mr Mee, in his words, grabbed Mr Robinson and assaulted him by punching and kicking him. [10] Annexure 1.

Decision

Reasons for decision

Nonetheless for the reasons given by Bampton J the offences were grave enough to demand a sentence of imprisonment even for a first offence. However I have concluded that the sentence imposed is manifestly excessive. A starting point of three months for each offence, if considered separately is appropriate. Some degree of concurrency is warranted. I would commence with an overall starting point of 20 weeks. Reducing that starting point by 10 per cent for Mr Mee’s guilty plea I would impose a sentence of 18 weeks imprisonment.Conclusion I would make the following orders:·Appeal allowed.·Term of period of imprisonment reduced to 18 weeks.·Suspension of the sentence on the same terms affirmed. BAMPTON J: Adrien Mee was the DJ at an op shop fancy dress 30th birthday party at Phillip Stephens’ home on the evening of 30 May 2015. Police attended the party twice during the evening in response to noise complaints. The festivities ended with Mr Mee and Mr Stephens being jointly charged with aggravated serious criminal trespass contrary to s 170 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) and two counts of aggravated assault contrary to s 20(3) of the Act. The charges followed a melee with David Robinson and Debra Griffiths, residents of a house directly across the cul de sac from Mr Stephens’ house. Following negotiations on the morning of trial on 16 May 2017, Mr Mee and Mr Stephens pleaded guilty to aggravated criminal trespass in a place of residence contrary to s 170A of the Act. Mr Mee also pleaded guilty to aggravated assault of Mr Robinson. Mr Stephens pleaded guilty to two counts of aggravated assault, one committed against Mr Robinson and the other against Ms Griffiths. The maximum penalty for aggravated criminal trespass is five years’ imprisonment and three years’ imprisonment for aggravated assault. Mr Mee was sentenced to 10 months, three weeks and three days’ imprisonment,[1] suspended upon entering into a bond to be of good behaviour for 18 months. Mr Stephens was sentenced to 13 months and two weeks’ imprisonment with a non‑parole period of seven months.[2] This sentence was also suspended upon Mr Stephens entering into a bond to be of good behaviour for 18 months. [1] Reduced by 10 per cent from one year due to the plea. [2] Reduced by 10 per cent from 15 months due to the plea. Mr Mee now appeals his sentence. By ground 1 he complains that the sentence is manifestly excessive in that the sentencing Judge erred in imposing a sentence of imprisonment and in recording a conviction. By ground 2 he complains that the Judge erred in finding he had a tendency to violence. He seeks permission to appeal on proposed ground 3 that the Judge made errors relevant to the factual basis and failed to put him on notice in relation to an intention to make adverse factual findings. By ground 4 he complains that there is a disparity between his sentence and that of Mr Stephens. For the reasons that follow, I would dismiss the appeal with respect to grounds 1, 2 and 4 and refuse permission to appeal with respect to proposed ground 3.Background

Ratio Decidendi

Legal Principle Established

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