R v Moore-McQuillan
[2018] SASCFC 121
•22 November 2018
Supreme Court of South Australia
(Court of Criminal Appeal)
R v MOORE-MCQUILLAN
[2018] SASCFC 121
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Auxiliary Justice Chivell)
22 November 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
Application for permission to appeal a sentence imposed by a District Court Judge. The applicant was sentenced to three months imprisonment for the offences of aggravated assault and breach of bail. That offending breached a suspended sentence of six months imprisonment for an offence of aggravated threatening harm. The learned sentencing Judge ordered that the sentence of six months be served cumulatively upon the sentence of three months, making a head sentence of nine months imprisonment. Her Honour declined to make an order that the sentence be served on home detention.
The applicant appeals the sentence imposed on the grounds that the learned sentencing Judge erred by refusing to permit either of the sentences to be served on home detention (ground 1), by failing to take into account the length of time between the date of the offending and the date of sentence (ground 2), by failing to reduce the sentence on account of the “guilty plea” (ground 3) and by not ordering that the sentences be served concurrently (ground 4).
Held per Kelly J (Peek J and Chivell AJ agreeing) refusing permission to appeal on grounds 2, 3 and 4 and granting permission to appeal on ground 1 but dismissing the appeal:
1. In considering the issue of revocation of the suspended sentence, the learned sentencing Judge correctly applied the Sentencing Act 2017 and correctly determined that home detention was not appropriate in light of the applicant’s history and the circumstances of the offending.
2. The delay between the date of the offending and the date of sentence did not amount to special circumstances within the meaning of s 114(5)(a) Sentencing Act 2017.
3. There was no “guilty plea” to justify a discount.
4. There was no basis for the learned sentencing Judge to have imposed concurrent sentences nor to have discounted the sentences.
Sentencing Act 2017 Sections 5, 71 and 114; Criminal Law (Sentencing) Act 1988 Sections 33BB and 38, referred to.
R v Oake [2017] SASCFC 82; R v Dell (2016) 126 SASR 571; R v Filipponi [2016] SASCFC 148, considered.
R v MOORE-MCQUILLAN
[2018] SASCFC 121Court of Criminal Appeal: Kelly and Peek JJ and Chivell AJ
KELLY J:
The applicant applies for permission to appeal a sentence imposed by a District Court Judge on 6 June 2018.
On that date the Judge sentenced the applicant for the offences of aggravated assault and breach of bail, both committed on 10 December 2015. The offending constituted a breach of a bond entered into in the District Court on 9 December 2014 as a condition of receiving a suspended sentence of six months imprisonment for another offence of aggravated threatening harm committed on 14 October 2011.
The Judge imposed a sentence of three months imprisonment for both offences committed on 10 December 2015. Her Honour revoked the suspension of the sentence of six months imposed on 9 December 2014. After finding that there were no special circumstances to justify reducing that sentence, her Honour ordered that the sentence of six months be served cumulatively upon the sentence of three months imposed for the other two offences.
The applicant now seeks permission to appeal the sentence imposed on four grounds, each complaining that the Judge erred by:
1.refusing to permit either of the sentences to be served by way of home detention;
2.failing to take into account the length of time between the offending on 10 December 2015 and the date of sentencing on 6 June 2018;
3.not allowing any reduction on account of “the guilty plea”, and
4.not allowing the sentences to be served concurrently.
A single Judge referred the application for permission in respect of all four grounds to this Court.
Discussion – Ground 1
The first ground of appeal raises a number of potential issues for consideration, the resolution of which is not an easy task. The first issue which arises on ground 1 is whether the applicant was to be sentenced under the Sentencing Act 2017 (“new Act”) or its predecessor the Criminal Law (Sentencing) Act 1988 (“old Act”).
The new Act came into operation on 30 April 2018. The relevant transitional provision contained in Schedule 1, Part 2, Clause 2(1) states:
2. Transitional provisions
(1) Subject to this clause, this Act applies to the sentencing of a defendant after the commencement of this Act, regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement.
The Judge at first instance was invited to sentence under the new Act. No suggestion was made to the contrary.
There is no issue that the new Act applied to the sentencing of the applicant in respect of the two offences committed on 10 December 2015. The question whether the new Act also applied to the issue of revocation of the suspended sentence imposed on 9 December 2014 is not as easy to answer.
The transitional provisions refer only to “the sentencing of a defendant”. A “sentence” is defined in section 5(1) of the new Act to mean:
(a) the imposition of a penalty; or
(b) the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c) the fixing, extending or negating of a non-parole period; or
(d) the making of any other order or direction affecting penalty, including the decision of a court to discharge a defendant—
(i) without imposing a penalty; or
(ii) without recording a conviction;
The definition in sub-paragraph (d) is inclusive.
In my view, the revocation of a suspended sentence is necessarily an order affecting penalty within the definition encompassed by sub-paragraph (d) of section 5(1) of the new Act. In this particular case, involving as it did an order that the original sentence be carried into effect, it might also be encompassed by the definition in sub-paragraph (a) of section 5(1). Whether appropriately described as a penalty under sub-paragraph (a) or an order affecting penalty under sub-paragraph (d), it is my view that the transitional provision covers proceedings with respect to breaches of suspended sentence bonds and therefore the new Act applies.
In these circumstances, there is one further issue which potentially arises and that is whether the terms of section 71 of the new Act permit a court which has revoked a suspended sentence to order that the sentence of imprisonment be served on home detention.
For reasons which will become apparent, this is not an issue which needs to be resolved on the present appeal as, in my view, the sentencing Judge was correct to determine that home detention was not appropriate in light of the applicant’s history and the circumstances of offending.
However, in deference to the submissions made by the Director, I should make it clear that I agree with the observations of Nicholson J in R v Oake[1] that in the present circumstances a home detention order could not be made.
[1] [2017] SASCFC 82.
In Oake the Court was dealing with the old Act. Some aspects of the Court’s reasoning in that decision no longer apply because pursuant to the new Act a home detention order is no longer a suspended sentence. Nevertheless, the remarks of Nicholson J remain apposite.
His Honour concluded that section 33BB(1) of the old Act which for present purposes is essentially identical to section 71(1) of the new Act, does not permit a home detention order to be made in circumstances where a court revokes the suspension of a sentence. His Honour stated:[2]
[2] [2017] SASCFC 82 at [37] – [39].
There are other textual considerations in section 33BB itself which lend support to the conclusion that an HDO is not available following the revocation of a previous suspension. The language of section 33BB(1) which establishes essential preconditions to the exercise of the discretion is antithetical to the availability of an HDO in the circumstances under consideration. Section 33BB(1) is directed to the original sentencing judge and not a judge who at a later time comes to consider whether or not to revoke a suspended sentence. Subsection 33BB(1) provides as follows.
(1) Subject to this section, if—
(a) a court has imposed a sentence of imprisonment on a defendant; and
(b) the court considers that the sentence should not be suspended under Part 5; and
(c) the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a home detention order).
By paragraph (a), the discretion is reposed (only) in a court that has imposed the sentence of imprisonment under consideration. It is to be part and parcel of the sentencing process that the judge who imposes the prison term also considers whether or not it is to be suspended in the conventional manner under section 38 or, failing that, on home detention conditions under section 33BB. In the present case, the judge who revoked the suspension and then purported to apply section 33BB was not the judge who had imposed the sentence of imprisonment as envisaged by section 33BB(1).
That the “court” here refers to the original sentencing judge rather than the judge who has revoked the suspension even though they may be members of the same Court, is further supported by paragraph (b). An essential pre-condition to exercising the HDO discretion is that the court must first give consideration to but reject a suspension of the sentence under Part 5, that is, section 38 of the Act. However, the discretion to suspend under section 38 is not available to the revoking judge. That judge cannot suspend (a second time) under Part 5. To require, in accordance with section 33BB(1)(b), that judge to consider whether he or she should do so makes no sense.
By parity of reasoning, I consider that it was not open to the Judge after ordering revocation of the suspended sentence to again suspend the same sentence. The terms of section 71(1) of the new Act are in essentially identical terms to the previous section 33BB(1) of the old Act. It is clear that the power to order home detention is confined to circumstances where the court is imposing a sentence at first instance as distinct from circumstances where a court is dealing with revocation of a suspended sentence imposed at an earlier time.
Different considerations may well apply to whether the Judge could have ordered that the three months she imposed for the offending on 10 December 2015 could be served on home detention. However, I do not consider it necessary to finally decide that issue in the context of the current circumstances. I have reached the firm view that even if it was permissible to make a home detention order, the Judge was nevertheless correct to determine that it was inappropriate in light of the applicant’s circumstances.
This was the seventh conviction of the applicant for assaulting a person connected with judicial proceedings in which he was a party.
On 21 February 2000 the applicant was sentenced to six months imprisonment which was suspended upon him agreeing to enter into a good behaviour bond for 18 months for an offence of assault upon an Adelaide barrister with whom the applicant had had previous dealings in relation to his disputes with Workcover.
On 11 September 2002 the appellant was again convicted of assaulting a barrister representing Workcover and sentenced to 11 months imprisonment with two months to be served and the remainder suspended.
On 27 June 2008 the applicant was sentenced to four months imprisonment suspended upon him agreeing to enter into a bond of good behaviour for 18 months for offences of assault and threatening to cause harm to a barrister in Courtroom 12 of the Supreme Court building.[3] The barrister was a witness for Workcover in proceedings before Auxiliary Justice Olsson in the Workers Compensation Tribunal involving the applicant and Workcover.
[3] I note in the sentencing remarks the Judge referred to this episode as being for “an assault unrelated to Workcover”. However the judgment of Nyland J in Moore-McQuillan v Police (2) [2010] SASC 160 to which this sentence relates makes it clear that this matter also related to a Workcover matter.
On 6 December 2007 a Magistrate ordered the applicant to perform 96 hours of unpaid work for the community for an offence of assault occasioning actual bodily harm upon a process server who was attempting to serve the applicant with a restraining order in Gouger Street as the applicant left the Supreme Court building.
On 9 December 2014 the applicant was sentenced to six months imprisonment suspended upon him entering into a bond to be of good behaviour for three years in respect of one count of aggravated threatening to cause harm to a barrister appearing for Workcover during the course of proceedings before Auxiliary Justice Olsson.
Less than 12 months later on 8 July 2015 the applicant assaulted another barrister in a court room of the Supreme Court building in the course of Workcover proceedings before Justice Blue. He was sentenced by a magistrate on 4 August 2017 to yet another term of six months imprisonment, which was suspended upon him entering into another good behaviour bond for 12 months.
On 18 April 2018 the applicant was found guilty following trial in the Magistrates Court of one count of aggravated assault and breaching a condition of bail. The offences were committed on 10 December 2015 in the course of defamation proceedings in the District Court which the applicant had instituted. At the end of the hearing the applicant approached Ms Cynthia Hynes, the solicitor for the defendant, accosted her and impeded her in a threatening manner. This act was the subject of the aggravated assault charge. When a Sheriff’s officer intervened, the applicant engaged in a verbal altercation with him. The applicant had on 13 July 2015 entered into a bail agreement including the condition that he “not harass, alarm, distress or otherwise give cause for concern to any employee of the South Australian Courts of Administration Authority or other official employed within a Courts Administration Authority building.” The conduct towards the Sheriff’s officer was the subject of the breach of bail charge.
They are the offences for which the applicant was sentenced on 6 June 2018. The sentencing Judge imposed a sentence of three months imprisonment to be served cumulatively on the six months which the applicant was required to serve by virtue of the revocation of the suspended sentence imposed on 9 December 2014.
It can be seen from the foregoing that the applicant has a significant history for previous offences of violence over a period of some 20 years. In respect of some of these offences, the applicant was given the benefit of suspended sentences. Nevertheless he went on to commit further offences of violence, some of them while still subject to a bond to be of good behaviour. In the case of the offences committed on 10 December 2015, they were committed while the applicant was on bail and while he was subject to a suspended sentence for threatening another barrister.
The offending against the barrister on 8 July 2015 was confrontational and intimidatory. When the opportunity arose the applicant inflicted harm upon the barrister, from which he still has not fully recovered.
The applicant’s history, which includes numerous prior convictions for similar offences of violence, the fact he has breached a bond twice and the fact that he has shown a capacity to offend whilst on bail, highlights the need to give prominence to both personal and general deterrence in sentencing him.
The sentencing Judge plainly recognised this when deciding to impose an immediate custodial sentence and in her Honour’s consideration of whether home detention was an appropriate order.
The history of the applicant plainly militated against any order for home detention as well.
Contrary to the applicant’s submission, an order for home detention is a significantly less onerous form of punishment than a requirement that a person serve a term of imprisonment within a prison. This Court has recognised as much on previous occasions (R v Dell[4]; R v Filipponi[5]).
[4] (2016) 126 SASR 571.
[5] [2016] SASCFC 148.
Ground 4
The applicant complains that the sentencing Judge did not take sufficient account of the fact that all of his offending arises out of what he referred to as “one stream” by which the applicant explained he meant that all of his offending has arisen out of his disputes with Workcover. That may be so, however it does not afford any basis for the Judge to have imposed concurrent sentences, nor does it afford any proper basis on which the Judge could have discounted the sentence. To the contrary, I regard the fact that all of the applicant’s offending has arisen in the course of judicial proceedings or proceedings associated with judicial proceedings, as a serious aspect of the applicant’s offending. It seems likely that the proceedings in which the applicant has been involved over many years will continue for some time. There is therefore a real need to protect officers of the court who are simply performing their duties in judicial proceedings in the future from the applicant’s propensity to behave in a violent, aggressive and intimidatory manner.
Ground 2
The applicant complained that the Judge did not take into account the length of time between commission of the offences and sentencing.
The offence which was the subject of the bond was committed on 14 October 2011. The applicant pleaded not guilty and was convicted after a trial of two counts. He appealed his convictions. On appeal one conviction was quashed and the other conviction was affirmed. Sentencing of the applicant was delayed until after the appeal. On 9 December 2014 the applicant was sentenced to six months imprisonment, suspended upon him entering into a three year good behaviour bond.
The assault committed by the applicant on 8 July 2015 was contested. He pleaded not guilty and there was a trial in July 2017. The assault was captured on CCTV footage of the incident. That footage showed the applicant moving aggressively towards the barrister, pointing his finger at him. As the applicant rolled his chair toward the barrister, the barrister rolled his chair away, put up his hand as if to signal stop and raised his right leg to stop the applicant’s advance. The applicant then grabbed the complainant’s leg and pulled it upwards and towards himself, resulting in the barrister being pulled off his chair. The injuries suffered by the barrister persist to today.
The aggravated assault and breach of bail committed on 10 December 2015 were also contested. Again, there was CCTV footage of the incident. The trial commenced in April 2018. He was convicted on 18 April 2018.
The breach of bond proceedings were first before the District Court on 22 September 2017. The applicant sought adjournments until 4 April 2018. New breach proceedings were laid to include the aggravated assault for which he was convicted on 18 April 2018. The applicant was sentenced on 6 June 2018.
While there is no question that the applicant had the right to plead not guilty, it can be seen from the foregoing that the delay in the various proceedings occasioned by the various trials was largely due to the applicant’s decisions. At no time did the applicant exhibit any willingness to facilitate the course of justice, nor did he display any change of attitude or behaviour.
In these circumstances the delay between the offending and the sentencing did not amount to a special circumstance within the meaning of section 114(5)(a) of the new Act.
The mere fact that the applicant has desisted from further offending after already breaching the bond twice did not amount to special circumstances. In any event, the Judge did acknowledge in her sentencing remarks that there had been no further offending since December 2015. To that extent the delay was taken into account.
Ground 3
Finally, the applicant has complained that the Judge did not give him any discount for an early plea. That is because there was no early plea. The applicant acknowledged the breaches of the District Court bond entered into on 9 December 2018, after he was convicted for the offending on 8 July 2015 and 10 December 2015. He is not entitled to any discount for acknowledging that his offending breached a bond.
Conclusion
There has been no error demonstrated in the Judge’s approach to sentencing the applicant. In these circumstances I would refuse the applicant permission to appeal in respect of grounds 2, 3 and 4. As the determination of ground 1 involved an important question of law, I would grant the applicant permission in respect of ground 1. However, I would dismiss the appeal on all grounds.
Finally, I make the comment that we were informed by the applicant during the hearing of the appeal that he was released on home detention on 20 July 2018. Subsequently, the Department for Correctional Services confirmed that the applicant was released on Home Detention on that date pursuant to s.37A of the Correctional Services Act 1982.
In the particular circumstances of this case I consider that the decision of the Chief Executive to release the applicant on home detention only six weeks after he was sentenced in the District Court has directly undermined the exercising of the sentencing discretion by the learned sentencing Judge. The applicant, as I have set out in detail, has a very poor history for previous offences of violence. The Judge was right to reject the submission that the sentence ought to be suspended or served on home detention. Having done so, I consider that the action of the Chief Executive less than six weeks later seriously undermines the purpose of the sentence. As a consequence, it is my view that the current appeal lacks utility and has been a somewhat pointless academic exercise.
PEEK J:
I would dismiss the appeal. I agree with the reasons of Kelly J.
CHIVELL AJ:
I agree that permission to appeal should be refused in relation to grounds 2, 3 and 4, permission to appeal should be granted in relation to ground 1 and that the appeal should be dismissed for the reasons given by Kelly J.
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