(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Justice Doyle)
9 May 2019
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - SUBSTANCE ABUSE
Appeal against sentence for one count of causing a bushfire with reckless indifference contrary to s 85B(1)(b) of the Criminal Law Consolidation Act 1935 (SA). The appellant was sentenced to imprisonment for three years, seven months and two weeks, with a non-parole period of two years and five months.
The appellant contends that (1) the sentence is manifestly excessive, in particular because the sentencing judge gave no, or inadequate, weight to that the appellant was experiencing a psychotic condition at the time of committing the offence; and (2) that the non-parole period is manifestly excessive.
Held per Doyle J (Peek and Parker JJ agreeing):
1. Consideration of the stages at which, and ways in which, the mental condition of an offender informs the sentencing process.
2. No error has been identified in the sentencing judge’s approach arising out of either the drug-induced intoxication or psychosis affecting the appellant at the time of his offending, or the appellant’s underlying history of substance abuse and mental health issues.
3. The sentence is not manifestly excessive.
4. The non-parole period is not manifestly excessive. It has not been established that the sentencing judge failed to have adequate regard to the factors personal to the appellant in fixing a non-parole period.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Monks [2019] SASCFC 47
Case
[2019] SASCFC 47
Decision Date
CaseChat Overview and Summary
The Full Court of the Supreme Court of South Australia, comprising Peek, Parker and Doyle JJ, heard an appeal by the appellant, R v Monks, against a sentence imposed by a sentencing judge. The central dispute concerned the adequacy of the sentencing judge's consideration of factors personal to the appellant when fixing a non-parole period.
The court was required to determine whether the sentencing judge had failed to give adequate regard to the appellant's personal circumstances in fixing the non-parole period. This involved an assessment of whether the non-parole period was appropriate in light of all relevant factors.
The court reasoned that there was no basis to contend that the sentencing judge had failed to adequately consider the appellant's personal factors. Despite the complexity of these factors, the sentencing remarks indicated no misunderstanding or insufficient regard by the judge. The court found that the circumstances did not warrant a non-parole period shorter or longer than usual. Consequently, the non-parole period of two years and five months, representing two-thirds of the head sentence, was deemed appropriate and not manifestly excessive.
The appeal was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
However, I do not consider that there is any basis for contending that the sentencing judge failed to have adequate regard to the factors personal to the appellant in fixing a non-parole period. While the factors relevant to the non-parole period were relatively complex, there is nothing in his Honour’s sentencing remarks to suggest that he misunderstood any of those factors or otherwise had inadequate regard to any of them. There was nothing in those circumstances that called for a shorter than usual non-parole period, or longer than usual period on parole.[48] The non-parole period of two years and five months, being two thirds of the head sentence, was an appropriate one in the circumstances. It was not manifestly excessive. [48] cf the circumstances of the defendant in R v White [2009] SASC 239 at [37] (Doyle CJ, Duggan J agreeing).Conclusion For the reasons given, I would dismiss the appeal.