R v Mee

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

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.
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.
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 Police attended and the music was turned down for a short period of time but turned up after the Police left.
·After an exchange of texts with Mr Robinson who had demanded that the music be turned back down, Mr Stephens went next door to remonstrate with Mr Robinson over his complaints about the music and Mr Mee accompanied him.
·Mr Stephens knocked so heavily on the front door that he shattered a glass panel in it, but it is not alleged that Mr Mee encouraged that conduct.
·Mr Robinson and his domestic partner Ms Griffiths came to the door and told Mr Mee and Mr Stephens to leave.
·A fight broke out in which Mr Stephens assaulted both Mr Robinson and Ms Griffiths and in which Mr Robinson stabbed both Mr Stephens and Mr Mee.
·Mr Robinson ran down the road calling out ‘I fucking stabbed you you weak cunts’ before being caught by Mr Stephens who wrestled him to the ground.
·In the course of that struggle, probably while Mr Robinson was on the ground Mr Mee punched and kicked Mr Robinson on a number of occasions.
·Mr Robinson suffered abrasions to his head and face over the course of these events but it is not known whether they were caused by Mr Mee or by Mr Stephens.
On those facts the trespass offence occurred when Mr Stephens knocked heavily on the door in a way plainly inconsistent with the implied licence, or at the latest, when he and Mr Mee were told to go. Mr Mee did not encourage or participate in the assault on Mr Robinson and Ms Griffiths. Nonetheless Mr Mee’s conduct in accompanying Mr Stephens to remonstrate with Mr Robinson, and in remaining there once Mr Stephens knocked on the door, was a serious infringement of Mr Robinson’s right to privacy and security in his own home and was fraught with the danger of escalation. It is behaviour which calls for a penalty which is an effective personal and general deterrent.
Punching and kicking a person who has fallen is a serious assault. General deterrence again assumes substantial importance. However the absence of identifiable injury limits the sentence which can properly be imposed.
Mr Mee is a bright, industrious young man who before this offending was of good character. He has much to contribute to the community.
A starting point of 12 months imprisonment is too much for a young man who was drawn into this offending by friendship, enthusiasm for loud music and party befuddled judgment. Furthermore the shallow stab wound to his lower back and the deeper wound to the right side of his lower chest, for which he was hospitalised for two days, are no mere trifles. The personal deterrent effect of those consequences of his offending should not be underestimated.
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 30^th 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
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.
Mr Robinson suffered minor abrasions, soft tissue injuries and bruising during the incident. There is no evidence identifying which of Mr Robinson’s injuries is attributable to which assault.
The sentencing submissions
The first issue to determine is the factual basis of Mr Mee’s guilty plea.
On 20 June 2017, Mr Mee’s solicitors filed an outline of submissions (“the outline”). Annexure 1 to the outline is a document titled “Version of Events Adrian Jonathon Mee” (“Annexure 1”).
At the commencement of the hearing of submissions on 21 June 2017, the Judge asked the prosecutor, Mr Plummer, about the outline:
HER HONOUR:     What do you say in relation to the agreed facts or the facts that have been put forward in relation to the basis of the plea, Mr Plummer?
MR PLUMMER:     Is your Honour referring to the facts as contained within the outline of Mr Anders?
HER HONOUR:     Yes.
MR PLUMMER:     They are not the agreed facts. They are the instructions that are put forward by Mr Mee. The agreed facts are those that were communicated to the court on the last occasion. A document was sent to both of my learned friends in relation to a set of agreed facts. They were consistent with what was retained on the transcript on the last occasion. There were some things I disagreed with in relation to the outline. Importantly, at para.3, ‘The defendant has pleaded guilty on the factual basis that accords with the statement of his legal advisers supplied to the prosecution on 30 March 2016’. There is a document that is attached to that outline. The factual basis of the plea is not entirely consistent with that document. There are some important discrepancies. …
MR ANDERS:      That is correct. I had planned as soon as I took to my feet to qualify that document. Rather than the written outline, that document was an annexure to the written outline, purely because it demonstrates that, well in advance of the trial listing, Mr Mee gave a narrative that is, as I say, consistent with or in accord with the basis upon which he is now to be sentenced, with the exception of that earlier altercation …
MR PLUMMER:     … the agreed factual basis is not the version of events as put forward by Adrien Mee in the annexure one, that is not the agreed factual basis that is his version of events and I don’t think either of my learned friends disagree with that. I wanted to make that clear; the reason for that being put to the court, my understanding is that a version of events was put to the prosecution which is somewhat consistent with what resulted in the plea. I say the same about the beginning of Mr Anders’ outline, in which the factual overview is detailed. That as well is not the agreed factual basis.
(Emphasis added)
Mr Anders, counsel for Mr Mee, told the Judge that the:
… factual overview there adds to the agreed facts rather than sitting in contradiction with the agreed facts, it adds to the agreed facts that balance of the narrative, the instructions that are supplied by Mr Mee. That is the nature of that document, so it goes beyond the agreed facts and adds some greater level of texture so that your Honour can understand the totality from the perspective of Mr Mee.
What were the agreed facts communicated to the court on the “last occasion”?
As can be gleaned from the interchange between the Judge and the prosecutor no written statement of agreed facts was filed. The prosecutor referred to the agreed facts being those communicated to the Court “on the last occasion”, which was 16 May 2017, the day the matter was listed for trial.
By reference to the transcript of the proceedings on 16 May 2017, the Judge informed the parties when court convened that she had noted that there was a time when the parties were not far apart and it appeared as though the matter was capable of resolution. Following that intimation, the parties requested an adjournment in order to explore the prospect of resolution. At 12.30 pm that day, the parties reconvened before the Judge. Mr Anders informed the Judge that Mr Mee was prepared to resolve the matter on the basis that he attended:
… the address as per the prosecutor statements, he did so following Mr Stephens … He pleads guilty to a trespass on the basis that he goes to that location, and that he hears the glass breaking, and he hears the occupants yelling words laden with expletives to the effect of ‘Go away, Phil’ and then any implied licence he had to enter into that property and go to the front door has been revoked and in those circumstances he is guilty of trespass.
Mr Anders stated that Mr Mee would also “plead guilty to a charge of assault relevant to the male complainant only and that relates to subsequent events that occur on the road”. The question is: what were the subsequent events on the road?
Counsel for Mr Stephens said that Mr Stephens would plead guilty to criminal trespass and to two counts of aggravated assault.
Before adjourning the matter to 3.00 pm that day, the Judge portentously suggested to the parties “… that if you are not going to proceed to submissions today, that you take the time to put the agreed facts, or the facts upon which you both, all parties say I should sentence in writing, so that there’s no issue in relation to anything that may arise …”.
The prosecutor filed a fresh Information later that afternoon jointly charging Mr Mee and Mr Stephens with aggravated criminal trespass in a place of residence and one count of aggravated assault against Mr Robinson. The circumstance of aggravation was that both offences were committed in company. Mr Stephens was also charged with aggravated assault of Ms Griffiths. The circumstance of aggravation was that the assault was committed in company with Mr Mee.
Mr Mee and Mr Stephens were arraigned on the new Information and pleaded guilty to the offences charged against them. The Judge clarified following the entering of the pleas that the circumstance of aggravation with respect to Mr Stephens’ assault on Ms Griffiths involved Mr Mee being present, but not being in company for the purpose of the assault.
Do Mr Mee’s counsel’s submissions shed light on the “subsequent events on the road”?
It was asserted by Mr Anders during sentencing submissions that the factual basis detailed to the Court on 16 May 2017 was expanded upon in the outline. The outline stated that Mr Mee “has pleaded guilty on a factual basis that accords with” Annexure 1, which had been provided to the prosecution on 30 March 2016. The outline contains the following:
On the evening of 30 May 2015 the defendant had attended at the home of his co‑defendant, Phillip Christopher Stephens, as he was to perform as a DJ at a party to be held at Stephen’s home address. The party was in aid of Stephens’ domestic partner’s 30^th birthday. Whilst the defendant had known Stephens for many years (since they were small children – their parents were friends primarily through a connection to a shared church) they did not consistently socialise or spend time with one and other.
Through the course of the evening police attended to request that the noise be tempted. This attendance came about as a consequence of complaints made by neighbours.
In the period immediately preceding the commission of the admitted offending Stephens approached the defendant indicating that he had received a text from his neighbour David Robinson making specific complaint about the noise.
The defendant knew of David Robinson and understood that Robinson was a close friend of Stephens’. When the defendant had attended Stephens’ home on Friday 29 May to set up the speakers and his music equipment David Robinson had lent a drill to Stephens to assist him in this process. It was the defendant’s understanding that there was a long‑standing friendship between Robinson and that the noise issue could be resolved amicably.
The defendant was aware that Stephens was going to Robinson’s address. He understood that he was going there to resolve the issue as opposed to inflame a dispute between the parties.
As the defendant was the person directly responsible for the excessive noise, he was the DJ, and Stephens had expressed his concern to the defendant about the noise the defendant felt somewhat responsible for the situation that then presented.
With this concern actuating his conduct the defendant walked outside when Stephens went to the Robinson address and followed him with the intention of offering an apology and an assurance that the music would not be turned up again.
Stephens was ahead of the defendant and arrived at the front door first. As a consequence of some verbal dispute between the parties Mee was witness to Stephens banging on the front door of the Robinson household. That conduct, and the argument that was occurring between Robinson and Stephens, took the defendant by surprise. He had not anticipated that there would be any argument between the parties rather he had hoped the attendance would promote an amicable resolution to the issue that had arisen.
It is an agreed fact that the defendant did not attempt to enter the Robinson household at any stage. It is further agreed that while he was in the vicinity of the front door he did not touch the door at any stage. He was present and had arrived on the porch of the address at the time Stephens banged with both hands on the front door causing damage to the glass in the door as per the police declarations and the exhibit photos.
The defendant did not join in any dispute however he was present and remained present whilst a verbal dispute ensued. The basis of the plea then to the charge of Trespass is that the defendant’s implied licence had been revoked as a result of the argument, as a result of Robinson telling Stephens and the defendant to depart, and otherwise remaining there in the area of the porch after Stephens had caused damage to the front door. It is not asserted that the defendant contributed to that damage or that the defendant had engaged in any verbal dispute with Robinson or his wife.
Thereafter the Robinson front door opens and the dispute escalates into a physical altercation that occurs at the front of the Robinson household in the area adjacent the front door and onto the front lawn. Both Robinson and his wife came outside of the premise and a melee ensued.
The defendant involved himself only to the extent that he intended to assist and extricate Stephens from the melee. He became aware that Robinson had a knife and that he was attacking Stephens with that knife – stabbing him to the area of the head. It was obvious to the defendant that Stephens’ life was in danger.
The defendant intervened to assist Stephens. It was in this context the defendant was stabbed 3 times; twice to the right of his abdominal area and once to the back. The evidence relevant to these injuries and subsequent treatment administered is as detailed within the statement of Dr Peter Bautz dated 27 July 2015; the report of Phillip Crowley dated 20 September 2016. These are items 1 and 2 in the book of documents relied upon in these submissions in mitigation of penalty.
After Robinson had stabbed both the defendant and Stephens, Robinson ran to the area of the road. It is conceded that at this stage the defendant chased Robinson and he engaged Robinson in the area of the road. It is that conduct which forms the foundation for the charge of Aggravated Assault.
The defendant approached the area where Robinson and Stephens was still engaged and kicked and punched Robinson in this context. The defendant concedes by his plea that his conduct was not consistent with a defensive purpose, either self defence or defence of another; rather it was motivated by a desire to detain Robinson and exact some retribution. The defendant was intent upon ensuring Robinson did not escape and that the extent of the injuries sustained by Stephens would not be furthered exacerbated. At that stage however Robinson had thrown away the knife and there was no need for the conduct in which the defendant engaged and he enters his guilty plea accordingly.
Robinson’s presentation post this incident, and the medical evidence otherwise relevant to his condition, clearly reveals that his injuries overall were very heavily confined. The defendant’s assault on Robinson did not result in any injury to Robinson beyond minor bruising, associated grazing and relatively minor pain (a minor headache only – no other pain cited according to the discharge summary).
The defendant did not engage the female defendant in the context of the commission of any offence and thus any injuries or complaints she makes is irrelevant to the admission the defendant has made to these offences.
Prior to the commission of the assault offence the defendant had been stabbed and was aware that his friend was seriously injured. It is in this context that he engaged in the assault offence. It is offending that was promoted by those earlier events and otherwise, as can be concluded when reviewing the positive evidence of good character and otherwise the absence of any relevant antecedents, that was conduct that is entirely inconsistent with the manner in which the defendant would ordinarily conduct himself.
The incident was thus reactive (void of any planning and/or premeditation), short lived, promoted by a desire to assist a friend, it did not compromise a part of any wider course of conduct and occurred in the context of a knife attach that saw both the defendant and Stephens sustain very serious injury.
The assault occurred moments after he had saved his friends life and as a direct response to the conduct on the part of the complainant Robinson that placed both the defendant and Stephens life in jeopardy.
(Emphasis added)

In Annexure 1, Mr Mee described the assault as follows:
I must have been hit at some stage as I do not recall moving from the front lawn to the street.
My next memory is seeing Phil and the other male in a scuffle on the street. I recall seeing blood over Phils face at which point I did whatever I could to protect Phil. I recall grabbing and punching and I believe even kicking to try and get this man off Phil …
During submissions on 21 June 2017, Mr Anders spent some time addressing the Judge about Mr Mee’s personal circumstances and Mr Mee’s instructions regarding his motivation for following Mr Stephens when he went to speak to the victims. Mr Anders described that Mr Mee “understood that Mr Stephens’ good friend Mr Robinson was upset” and to a degree he was responsible for the noise. Mr Anders submitted that Mr Stephens spoke to Mr Mee expressing his disappointment at the noise and indicating he had received messages from his friend Mr Robinson. Mr Anders referred to Mr Mee arriving on the Robinson/Griffiths porch and the door being punched by Mr Stephens. At this juncture the Judge said:
HER HONOUR:     There must have been a great deal of force used, mustn’t there, to be banging on the front door and smashing the glass?
…
HER HONOUR:     Just a minute, why did he think that Mr Stephens was going to this front door?
MR ANDERS:      As Mr Stephens left he understood that he had played the music too loud, that his longstanding friend Mr Robinson was upset.
HER HONOUR:     I think we can leave out these constant references to ‘longstanding friends’, the ‘friend’. The friendship, it seems, as far as your client is concerned, is based upon lending a drill, if that happened. Now that, it seems to me, would not give rise to this belief that your longstanding friend is in the house next-door but not at your party. Was there a reason for that?
MR ANDERS:      As will be spoken to and I gather is actually referred to in the police interview of Mr Robinson, Mr Robinson was invited and he elected not to attend. Mr Mee’s understanding is this is Mr Stephens’s party, he and Robinson are friends, he didn’t ask him why he didn’t attend or make any of those inquiries. He just didn’t think that there was any great problem between these two men until the noise was too loud.
HER HONOUR:     That might be the sum of it. Rather than putting a gloss on this that probably - and I’m not forming any concluded view at the moment until I’ve heard everything you say, and Mr Stratton-Smith has to say, and of course, Mr Plummer - but that seems to be he didn’t think there was a problem between them, but perhaps we shouldn’t be elevating this to he thought these two were the best buddies that ever existed either, so why would he do something like this. It seems to me that what is not uncommon in a neighbourhood I would have thought, a party, a loud party, a neighbour complains, people are having fun at the party, bit cranky about the fact that someone has complained and the fun has been turned down and one of them, perhaps assisted by his friend, goes next-door to remonstrate with the complainer and thereafter things become nasty, things turn out of control and that’s the context in which this has occurred. Now, is that an unreasonable view?
MR ANDERS:      No, that is not an unreasonable view. Mr Mee was responsible for the excessive noise. He felt if he attended there it might ameliorate the risk of any further issue, perhaps they can continue with the party. Mr Mee is ‘I’m the one responsible, I can offer an apology, I can resolve this issue’. He did not go there with any intention of engaging in or supporting conflict, so the manner in which matters unfold takes Mr Mee by surprise.
……
HER HONOUR:     I think I was asking you about the banging on the door. At that stage when his friend has banged on the door of the neighbour’s, aggressively enough to break the glass, if it hadn’t been apparent then to Mr Mee, it must have been apparent at that time that this was in all likelihood not going to be a friendly conversation.
Mr Anders then described Mr Robinson, who was armed, and Ms Griffiths coming out of the house. He referred to there no longer being any offence against Mr Mee relevant to Ms Griffiths nor any “criminal offence alleged against Mr Mee in relation to the event that saw him stabbed”.
Mr Anders said that when Mr Mee saw that his friend was stabbed, he went to his aid. He asserted that the steps that he took on the front lawn, given the nature of the stab wounds Mr Stephens had, in all likelihood saved his life.
Mr Anders told the Judge that Mr Robinson threw away the knife and started to run away:
… At that point on the roadway he is engaged with Mr Stephens once again and the guilty plea to the assault relates to Mr Mee moving to the area of the roadway and engaging in an attack that cannot be confined to self-defence or defence of another. He goes beyond that threshold.
Mr Anders did not describe to the Judge in oral submissions what Mr Mee, in fact, did to assault Mr Robinson. He detailed Mr Robinson’s injuries as follows:
He had a minor headache and very minor soft tissue injuries. He presents in the police interview, a matter of hours after the relevant event, seemingly absent any injury at all, and that is the injury that results as a consequence of the commission of the aggravated assault offence. It is promoted by the event in which a longstanding friend is all but killed and he is stabbed three times.
The Judge was asked not to impose a sentence of imprisonment and to utilise either s 16 or s 39 of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”) and not record a conviction.
The prosecution’s sentencing submissions
At the outset of his submissions, the prosecutor said that he wanted to make one thing clear in relation to the attack on Mr Robinson by Mr Mee. He explained that the two assaults on Mr Robinson occurred at different places. The assault on Mr Robinson by Mr Stephens occurred at the house and:
… at that address Mr Mee was present whilst there was the yelling and the shoving at the door, but of course he did not enter the building, he remained in the patio area. But from there he pursued Mr Robinson down the street, down the lawn, rather, and out onto the street and that was, of course, after he had been stabbed. But it was there that he punched and kicked Mr Robinson.
The prosecutor said he mentioned this because there was an absence of information in Annexure 1 regarding what occurred between the events on the patio and the events on the road when, to quote from the outline, Mr Mee “approached the area where Robinson and Stephens was still engaged and kicked and punched Robinson in this context.”
The prosecutor submitted that the reason for Mr Stephens attending at the house was because of the particularly nasty text messages that had been going back and forth. He submitted that it was not simply a case of attending to discuss the noisy music.
The prosecutor said there was yelling and pushing at Mr Robinson’s door between Mr Stephens, Mr Robinson and his partner, Ms Griffiths. Mr Stephens banged on the front door and smashed through two glass panels in an attempt to gain entry. At that time Mr Mee was present and remained in the patio area. Mr Stephens gained entry into the house, entered a short distance into the hallway and a fight ensued between him and Ms Griffiths and Mr Robinson.
The melee then moved outside onto the front patio area “and involved all of those present”. It was during this fight that Mr Stephens assaulted both Ms Griffiths and Mr Robinson by punching them. It was also during this fight that Mr Robinson used a kitchen knife to inflict wounds on both Mr Mee and Mr Stephens.
Mr Robinson then ran from the patio and was followed by Mr Mee and Mr Stephens and was assaulted by Mr Mee in the presence of Mr Stephens.
The prosecutor said that it was accepted that Mr Mee was a hard-working man with strong character references. However, he said that the offending was too serious and that a conviction should be recorded. The prosecutor conceded that Mr Mee’s involvement in the matter was “perhaps less serious” than the involvement of Mr Stephens. However, it was pointed out that Mr Mee was involved in the initial altercation at the house insofar as he attended at the house when there was yelling and pushing of the door and he stayed there. It was submitted that he had the opportunity to leave and it was after that initial altercation that he followed Mr Robinson down the street and inflicted “those punches and kicks” to Mr Robinson. It was noted the assault occurred within the context of Mr Robinson having used a knife to stab him.
It was also pointed out that Mr Mee’s offending occurred in the context of him having used methylamphetamine that night and drinking Absinthe all night.[6]
[6] Mr Mee’s treating surgeon, Dr Peter Bautz, referred in his statement to Mr Mee’s report that he had been drinking during the night and he had used oral amphetamines.
Mr Stephens’ account
Mr Stephens said in his statement that Mr Robinson ran off from his house yelling out “I fucking stabbed you you weak cunts…”. At this point, Mr Stephens said he realised he had been stabbed and, “with a sudden burst of energy”, he chased after Mr Robinson and tackled him to the ground. He then realised something was very wrong with his head so he stopped and walked back to his house, noticing that Mr Robinson and Mr Mee were running down the street.
Mr Stephens does not describe Mr Mee’s assault of Mr Robinson which by reference to the outline and Annexure 1 must have occurred about the time Mr Stephens tackled Mr Robinson to the ground.[7]
[7] The outline refers to Mr Mee’s assault occurring at the area where Mr Robinson and Mr Stephens were still engaged. In Annexure 1, Mr Mee stated that he saw Mr Stephens and Mr Robinson in a scuffle on the street and he recalled grabbing and punching and kicking Mr Robinson to get him off Mr Stephens.
The statements of Ms Griffiths and Mr Robinson
Ms Griffiths said that she saw Mr Stephens and Mr Mee sprinting, heading down the road. She saw her partner lying down in the middle of the road on his back with Mr Stephens sitting on top of him and holding him down while the other “big guy was full on kicking [Mr Robinson] in the head over and over again with his arms out like kicking a soccer ball from one side of the pitch to the other”. She ran down the road screaming, asking them to stop. She said she shoved Mr Stephens with all her might to get him off Mr Robinson. Mr Robinson started to get up and he took off down the road.[8]
[8] Statement of Ms Griffiths, 23 March 2016.
In his record of interview, Mr Robinson described trying to get away from Mr Stephens and Mr Mee by running down his driveway. He said that Mr Stephens caught him grabbing him by the shirt then swung him around. He fell over and Mr Stephens fell on top of him. Mr Robinson said that Mr Stephens was “trying, punching on to me and then the other big bloke comes running in going kick, kick, kick, just kicking me”.
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.
There was on my assessment more to Mr Mee’s assault than one punch and one kick.
The sentence
At the time of sentencing, Mr Mee was aged 33 years and his only antecedents were convictions for giving false details and driving under disqualification. He was engaged and his partner was about to give birth to their first child.
The Judge noted in the sentencing remarks that Mr Mee was brought up in a religious family and following the separation of his parents he lived primarily with his mother. After he completed school, he spent some years living with his father. He has a close relationship with both parents. After he left school, he worked with his father as a finance broker and obtained Certificates and Diplomas qualifying him to work in the finance broking industry. He worked for himself for a period of two years. He then joined the Australian Credit Union, where he worked for four years before being head hunted by Bank SA. The Judge said that he had appeared to have had a very successful eight year working relationship with Bank SA, and, at the time of sentencing, held the position of a Senior Mobile Lender. In addition to working in this role, he had worked as a DJ in venues around Adelaide.
At the time of his offending, Mr Mee had been using amphetamines. The Judge was informed that his drug use occurred in the context of his work as a DJ. He was not using on a consistent basis but on the evening of the offending he had used a small quantity of the drug. The Judge noted that the use of drugs in his life was not only relevant to his offending but also in relation to his ambitions to hold a commercial pilot’s licence, noting that he had qualified as a private pilot and was attempting to obtain a commercial licence.
The Judge referred to the number of references and awards Mr Mee had received. Her Honour noted that all personal referees spoke very highly of him and held him in high regard. The Judge mentioned the many referees who had worked with him who regarded him as a valuable employee. The Judge said that she had taken into account a letter written by a contract pilot for Air Japan who spoke highly of Mr Mee and his capacity to become a commercial pilot.
The Judge accepted that a conviction would adversely affect Mr Mee’s employment prospects and his ability to hold a commercial pilots licence. Her Honour also accepted that the circumstances of the offending were spontaneous and the consequences to Mr Mee were significant. In accepting these matters, the Judge said that she noted that Mr Mee, having attended at the Robinson/Griffiths home, then chased down Mr Robinson to assault him. The sentencing remarks do not detail Mr Mee’s actions in assaulting Mr Robinson.
The Judge said that whilst Mr Mee had pleaded guilty, the plea was not entered until trial although she had taken into account that there had been ongoing negotiations. Her Honour said that taking into account the circumstances of the offending and matters personal to Mr Mee it was not appropriate to deal with the matter without conviction. Nor did she consider it appropriate to deal with the matter by way of a bond pursuant to s 39 of the CLSA.
The Judge determined that, having given consideration to s 11 of the CLSA, both Mr Mee and Mr Stephens had shown a tendency to violence by commission of the offences and a term of imprisonment was warranted.
The Judge deducted 10 per cent on account of Mr Mee’s guilty pleas from a starting point of one year. A sentence of 10 months, three weeks and three days’ imprisonment was imposed.
In sentencing Mr Stephens, her Honour started at 15 months’ imprisonment reduced by 10 per cent to 13 months and two weeks’ imprisonment with a non‑parole period of seven months.
Her Honour suspended both sentences, having concluded that the guilty pleas, the circumstances of the offending, and the rehabilitation both men had undertaken amounted to good reason to do so.
The grounds of appeal
Mr Mee’s affidavit
Following the hearing of the appeal, Mr Mee filed an affidavit deposing to the fact that as a result of his convictions he has not been granted a licence by the Civil Aviation Authority and therefore cannot gain his diploma in commercial aviation.
He explains that he now works as a Finance Manager in his father’s business under his father’s licence. He believes that he will be unable to work independently from his father as the convictions will prevent him from obtaining a credit licence and from becoming a member of the Mortgage & Finance Association of Australia.
Finally, he deposes that due to the loss of his eight year tenure at Bank SA it was not viable for him, his wife and infant son to continue living in their home. The home is now rented and Mr Mee and his family live in a granny flat at the rear of his mother’s home.
Ground 1
Mr Mee submitted that the sentence imposed was manifestly excessive in the unique circumstances of his admitted offending, being: the commission of a relatively minor assault that was committed in response to Mr Mee and Mr Stephens having been repeatedly stabbed by the victim; that the offending was confined and isolated; that he has no relevant police history; that there was a significant body of positive evidence of good character; that there is no risk of future offending; and that he had an excellent work history and strong prospects for the future.
Mr Mee’s complaint that the Judge erred in imposing a sentence of imprisonment
The Judge referred to having considered s 11 of the CLSA. Her Honour said that she was satisfied that both men had shown a tendency to violence. She had determined the offending warranted a term of imprisonment. Her Honour highlighted that the offending had occurred in the middle of the night in a manner that was in no way warranted. It would have been clear to Mr Stephens and Mr Mee that they were not welcome at the victims’ home. It would have been apparent to Mr Mee when Mr Stephens banged on the door and broke the glass panels, if not earlier, that an altercation was to occur. The Judge was entitled to infer from Mr Mee’s conduct in remaining on the porch during the fracas, then chasing Mr Robinson, grabbing, kicking and punching him on the street in Mr Stephens’ presence, that he had had shown, in those highly charged circumstances, a tendency to violence.

The Judge had the benefit of written and oral submissions regarding Mr Mee’s personal circumstances. The Judge carefully considered his personal circumstances and the need for general and personal deterrence. Another judge might have imposed a shorter term of imprisonment. However, it is not arguable that the sentence of imprisonment imposed in the circumstances of this offending was manifestly excessive. A penalty other than imprisonment could not properly have been imposed in this case.
The Judge’s decision to impose a sentence of imprisonment in the circumstances of the offending was within the proper exercise of the sentencing discretion.
Mr Mee’s complaint that the Judge erred in recording convictions
Mr Mee argued that the sentencing Judge erred in not exercising the discretion available pursuant to s 16 of the CLSA, which provides that:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii)the fact that the offence was trifling; or
(iii)any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
He also complained that the Judge erred in not proceeding, pursuant to s 39 of the CLSA, to discharge him without recording a conviction to be of good behaviour. Section 39 of the CLSA provides that:
(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(ab)   to comply with the other conditions (if any) included in the bond; and
(b)     if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
A sentencing judge must intend to impose a fine or a sentence of community service, or both, before proceeding further and considering whether there is good reason for not recording a conviction pursuant to s 16 of the CLSA. Section 39 of the CLSA can only be exercised if the Court decides not to impose a penalty.
I have already found that that the Judge did not err in imposing a sentence of imprisonment. It follows that the Judge did not err in recording convictions.
This ground is not made out.
Ground 2
Mr Mee submitted that the finding that he had exhibited a tendency to violence was made without any adequate basis.
It was submitted that Mr Mee pleaded guilty to trespass on the basis that he did not go to Mr Stephens’ neighbours’ property with any intent to cause a confrontation. He asserted that he attended hoping to be able to resolve any issue that had arisen as to the noise and that he carried this expectation given the longstanding friendship that existed between Mr Stephens and the neighbours. He contended that, when the fracas between Mr Stephens and Ms Griffiths and Mr Robinson started, he was guilty of trespass because when the dispute arose he did not immediately vacate the area. Mr Mee argued that only Mr Stephens pleaded guilty to assault at this juncture and it was during this physical altercation that Mr Robinson repeatedly stabbed Mr Stephens. Mr Mee asserted that he came to Mr Stephens’ aid and was also stabbed by Mr Robinson and it was only after the stabbing that he assaulted Mr Robinson.
It was submitted that the Judge departed from the agreed facts in sentencing Mr Mee by concluding:
You, Mr Mee, say that you went with Mr Stephens because you had been responsible for the music being played. I doubt that that is so.
…
There was absolutely no need for you to attend at the house of the complainants on this night. There was every reason why the music should have just been turned down and you should have allowed your neighbours to have enjoyed a good night’s sleep. I have no doubt both of you considered that it was unfair that the police had been called and that your enjoyment as you saw it was being curtailed unnecessarily.
…
There was no justification at all for you to attend at the complainants’ house in the middle of the night when their children were there.
…
As I said, these offences were committed in the middle of the night in a manner which was in no way warranted.
It was contended that this final observation led to the conclusion that a term of imprisonment was warranted.
Mr Mee complained that the Judge queried the submissions made relevant to the reasons for his attendance at the victims’ home. He said that his intention was to resolve the music issue and this was entirely consistent with the agreed factual basis. He said that the Judge did not challenge his final submissions and went onto sentence him on a basis that was in conflict with the submissions he had made, without him being provided the opportunity to give sworn evidence.
I disagree. As detailed earlier in these reasons the Judge made clear she questioned the submissions put by Mr Anders by suggesting:
It seems to me that what is not uncommon in a neighbourhood I would have thought, a party, a loud party, a neighbour complains, people are having fun at the party, bit cranky about the fact that someone has complained and the fun has been turned down and one of them, perhaps assisted by his friend, goes next-door to remonstrate with the complainer and thereafter things become nasty, things turn out of control and that’s the context in which this has occurred. Now, is that an unreasonable view?
Mr Anders agreed that the Judge’s proposition was not unreasonable. On my reading of the evidence, the Judge was entitled to find that she could not accept that Mr Mee was simply going to see the neighbours to sort out the issue.
As the prosecutor submitted to the Judge, it was after the stabbing that Mr Robinson “ran from the patio area and he was followed by both defendants and it was away from the lawn area [that] he was assaulted by Mr Mee in the presence of Mr Stephens”.
The prosecutor conceded before the sentencing Judge that Mr Mee’s involvement was perhaps less serious than that of Mr Stephens:
… However, he was involved in that initial altercation at the house insofar as he attended at the house, he attended when there was yelling and when there was a pushing of the door and he stayed there. He had the opportunity to leave. Then after that initial altercation he followed Mr Robinson down the street and that is where he inflicted those punches and kicks to Mr Robinson.
Again, that was within the context of Mr Robinson having used a knife to stab him. I don’t say otherwise. However, this involvement is too serious.
As stated by King CJ in R v Perre,[11] the ordinary role of the judge does not require him or her to indicate that he or she is not prepared to act upon submissions so that counsel may decide whether to call evidence. It is for the judge to decide what inferences he or she will draw from the primary facts and to decide the basis upon which he or she will sentence.
[11] (1986) 41 SASR 105 at 106.
There was ample evidence to support the inference drawn by the Judge regarding the conduct entitling her Honour to reject Mr Mee’s asserted motivation for following Mr Stephens and to conclude that he had shown a tendency to violence in committing this offending.
This ground is not made out.
Ground 3
Proposed ground 3 is the complaint that there were errors in the factual basis and the failure to put Mr Mee on notice in relation to making adverse factual findings. In my view, as detailed above, the matters complained about are inferences available on the facts.
The Judge did not accept the submission that Mr Mee went to the neighbours’ home as a peacemaker to resolve the issue of noise. The very clear inference to be drawn from the circumstances of the offending is that he went to assist and protect Mr Stephens. Those circumstances include the attendance of the police shortly before, the abusive text messaging, the time of night that Mr Stephens and Mr Mee attended the Robinson/Griffith home, Mr Stephens’ aggressive banging on the door, and the verbal exchanges with Mr Robinson and Ms Griffiths.
The prosecutor clearly told the Judge that Mr Stephens’ reason for attending the house was because of the nasty text messaging, it was not simply a case of going to discuss the nuances of music volume. Mr Mee’s asserted peacemaking role was not part of the agreed factual basis.
Further, Mr Mee’s counsel accepted the Judge’s comments during the course of submissions when she questioned whether what she proposed as set out in [80] above was not an unreasonable view. During a further exchange, the Judge made it abundantly clear that when Mr Stephens aggressively banged on the neighbours’ door that if it was not apparent “then to Mr Mee, it must have been apparent at that time that this was in all likelihood not going to be a friendly conversation”.
It was submitted that Mr Mee was denied procedural fairness by the Judge not putting him “on notice that she might sentence on a basis where specific issue had not been joined between Mr Mee and the prosecution”.
The Judge was not required to indicate that she was not prepared to act upon the submissions so that counsel could decide whether to call evidence. Further as stated by King CJ in R v Perre:[12]
The prosecution may or may not make submissions accepting or opposing the interpretation or version put forward. The decision as to the basis upon which to sentence is to be imposed is not, however, a matter for the prosecution but for the judge.
[12] (1986) 41 SASR 105 at 106.
On my reading of the Judge’s comments and questioning during sentencing submissions detailed above, it was patently obvious that her Honour was sceptical of certain submissions made on Mr Mee’s behalf and there was a risk they would be rejected.[13] Her Honour was entitled to conclude from the circumstances of the offending that “there was absolutely no need to attend at the house of the complainants on this night” and that she had “no doubt both of you considered that it was unfair that the police have been called and that your enjoyment as you saw it was being curtailed unnecessarily” and “there was no justification at all for you to attend to the complainants’ house in the middle of the night when their children were there”.
[13] R v Nemer (2003) 87 SASR 168 at [107].
I would refuse permission to appeal on proposed ground 3.
Ground 4
As I have determined that the sentence is not manifestly excessive and was within the reasonable discretion of the Judge, the remaining issue is Mr Mee’s complaint about parity.[14]
[14] Lowe v The Queen (1984) 154 CLR 606 at 610 (Gibbs CJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [31] (French CJ, Crennan and Kiefel JJ).
The parity principle recognises as between co-offenders that there should not be a marked disparity giving rise to a justifiable sense of grievance.
Neither Mr Mee nor Mr Stephens are first offenders. The Judge noted Mr Stephens had a number of prior offences, including offensive behaviour, loitering and cultivating more than a prescribed number of plants. The cultivation offence was committed three months prior to this offending. Like Mr Mee, he had no history of violent offending.
The starting point for the sentence imposed on Mr Stephens was 25 per cent higher than the starting point of the sentence imposed on Mr Mee. This, in my view, adequately reflected the additional aggravated assault pleaded to by Mr Stephens.
It is clear that her Honour kept in mind the principle of parity in the way she considered the role each man played in the offending and their respective personal circumstances.
The Judge’s remarks specifically identify Mr Stephens as the instigator of the offending and to having pleaded guilty to three offences, two of which “directly involved violence”. The different sentences imposed on Mr Mee and Mr Stephens appropriately reflected their differing degrees of culpability and their different objective and subjective circumstances and cannot objectively give rise to a justifiable sense of grievance on the part of Mr Mee.[15]
[15] Green v The Queen; Quinn v The Queen (2001) 244 CLR 462 at [31]-[33] (French CJ, Crennan and Keifel JJ).
Mr Mee’s resulting head sentence, being less than that of Mr Stephens’, adequately reflected Mr Mee’s lesser culpability and his different personal circumstances.
Ground 4 is not made out.
Conclusion
I would dismiss grounds 1, 2 and 4 as there is no error identified which suggested that the sentencing direction miscarried warranting the intervention of this Court.[16]
[16] House v The King (1936) 55 CLR 499 at 504-505.
I would refuse permission to appeal on proposed ground 3 as it is not reasonably arguable.
PARKER J: I agree with the reasons of the Chief Justice and the orders he proposes.

[2017] SASCFC 173

22 December 2017

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Appeal

Charge

Sentencing