R v Monks

Case [2019] SASCFC 47


SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MONKS

[2019] SASCFC 47

Judgment of The Court of Criminal Appeal

(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.

5.       The appeal be dismissed.

Criminal Law Consolidation Act 1935 (SA) s 85B; Sentencing Act 2017 (SA) s 11(1)(f), referred to.
R v Monks [2011] VSC 626; R v Wiskich [2000] SASC 64; R v Hronopoulos [2017] SASCFC 143; R v Verdins (2007) 16 VR 269; Pederson v Western Australia [2010] WASCA 175; Director of Public Prosecutions v Weidlich [2008] VSCA 203; R v Williams [2018] SASCFC 14; R v Lane (1990) 53 SASR 480; R v Redenbach (1991) 52 A Crim R 95; Butler v The State of Western Australia [2010] WASCA 104; R v Robazzini [2010] VSCA 8; Director of Public Prosecutions v Arvanitidis (2008) 202 A Crim R 300; R v Martin (2007) 20 VR 14; Damiani v The State of Western Australia (2006) 165 A Crim R 358; R v Bui [2018] SASCFC 19; R v Proom (2003) 85 SASR 120; R v Spiero (1979) 22 SASR 543; R v Henry (1999) 46 NSWLR 346; Bugmy v The Queen (2013) 249 CLR 571; Muldrock v The Queen (2011) 244 CLR 120; Mason-Stuart v The Queen (1993) 61 SASR 204; R v White [2009] SASC 239; R v Engert (1995) 84 A Crim R 67; R v Sewell (1981) 29 SASR 12; Green v The Queen [2011] VSCA 31; R v Tsiaras [1996] 1…

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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.

Ratio Decidendi

Legal Principle Established

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