R v NEILSON - [2016] SASCFC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NEILSON
[2016] SASCFC 90
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Bampton and The Honourable Justice Doyle)
19 August 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
The appellant pleaded guilty to one count of causing harm with intent to cause harm and one count of aggravated assault – immediate custodial sentence of two years’ imprisonment with a non-parole period of 10 months imposed – whether Judge erred in not suspending the sentence.
HELD per Bampton J (Vanstone and Doyle JJ agreeing):
1. The decision not to suspend the sentence was within the Judge’s discretion.
2. Appeal dismissed.
3. Appellant to be taken back into custody to serve the sentence.
Criminal Law Consolidation Act 1935 (SA) s 24(1), s 20(3); Criminal Law (Sentencing) Act 1988 (SA) s 38(1), referred to.
R v Wilton (1981) 28 SASR 362; Lowndes v The Queen (1999) 195 CLR 665; House v The King (1936) 55 CLR 499; Police v Chilton (2014) 120 SASR 32; R v Lutze (2014) 121 SASR 144; R v Wheeler [2015] SASCFC 83; R v Jongewaard [2009] SASC 346, considered.

R v NEILSON
[2016] SASCFC 90
Court of Criminal Appeal: Vanstone, Bampton & Doyle JJ

VANSTONE J: I would dismiss the appeal. I agree with the reasons of Bampton J.
BAMPTON J: The appellant was charged on an Information with causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) (count 1) and aggravated assault contrary to s 20(3) of the CLCA (count 2).
The appellant pleaded guilty at arraignment in the District Court on 11 January 2016 to count 2 and to count 1 at a special directions hearing on 11 May 2016.
Count 2 was aggravated because the assault was committed against the appellant’s former wife (J). Count 1 was committed against J’s partner, M. The maximum penalty for causing harm with intent to cause harm is 10 years’ imprisonment. Aggravated assault carries a maximum penalty of three years’ imprisonment.
On 17 June 2016, the appellant was sentenced for each offence resulting in a total sentence of two years’ imprisonment with a non‑parole period of 10 months to be served immediately. The appellant was released on bail following the grant of permission to appeal on 25 July 2016.
The appellant appeals against the sentence on the sole ground that the sentencing Judge erred in not suspending the sentence.
For the reasons that follow, I would dismiss the appeal.
Background
The appellant was married to J for over 32 years, separating towards the end of 2012 and divorcing in 2013. At the time of separation, J kept custody of the family dog, Jo Jo. At the time…

Grounds of appeal

[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.

Continue reading R v NEILSON

Details

AGLC: R v Neilson [2016] SASCFC 90
Case: [2016] SASCFC 90
Decision Date: 19 August 2016

CaseChat Overview and Summary

This appeal concerned a sentence imposed on the appellant, who had pleaded guilty to causing harm with intent to cause harm and aggravated assault. The appellant received an immediate custodial sentence of two years' imprisonment with a non-parole period of 10 months. The appeal was brought before the Full Court of the Supreme Court of South Australia, comprising Vanstone, Bampton, and Doyle JJ.

The central legal issue before the court was whether the sentencing judge erred in not suspending the appellant's sentence. The appellant contended that he was suffering from overwhelming distress at the time of the offending, which prevented him from exercising reason, and that this emotional stress should have been considered as a mitigating factor. Furthermore, the appellant argued that his guilty pleas, cooperation with the police, and offer to pay compensation demonstrated contrition and should have been given greater weight by the sentencing judge.

The Full Court affirmed that an appellate court will only interfere with a sentencing judge's discretion if it has been wrongly exercised. This includes situations where the judge has acted upon a wrong principle, taken into account irrelevant considerations, failed to consider material factors, acted on a mistaken view of the facts, or imposed a sentence that is manifestly inadequate or excessive. The court found that the sentencing judge had properly considered the nature of the offending, including the fact that it was an act of domestic violence against a former spouse, and the psychological impact on the victim. The appellant's complaints regarding the characterisation of the offending and the alleged failure to adequately consider his contrition were dismissed.

The appeal was dismissed, and the sentence imposed by the sentencing judge was upheld.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I would dismiss the appeal. Background The appellant was married to J for over 32 years, separating towards the end of 2012 and divorcing in 2013. At the time of separation, J kept custody of the family dog, Jo Jo. At the time of the offending, Jo Jo was 15 years old and severely ill. In December 2014, the appellant, having just returned from a trip to visit his terminally ill brother-in-law, found out that Jo Jo was declining rapidly and that arrangements had been made to have him put down. He prepared and inscribed a concrete slab to protect Jo Jo’s grave from feral animals. He sent a text message to J in the afternoon of 20 December 2014 saying:Just found out about Jo. I will take him when the time comes which sounds like shortly. If you want, I will take him in the interim.J did not respond to that message. At about 8.00 pm that evening, the appellant went to his former matrimonial home where J lived with her partner, M. The appellant went to the back door of the house where J met him and asked what he wanted. The appellant said he wanted Jo Jo and began ranting. J said she could tell that the appellant was drunk and she tried to tell him that she had it all in hand. At this time, the appellant was standing outside the back sliding door and J was standing inside the house. The argument became heated and the appellant started to push J’s shoulder with his shoulder. J shouted “Stop pushing me” whereupon M, who was in a different room, yelled at her to “Just shut the door”. M then came into the room and stood behind J trying to shut the sliding doors. As soon as the appellant saw M, he became more aggressive. He pushed J. As M was right behind J, the push caused both of them to step backwards and the appellant was able to get into the house. He kept pushing J and, as M was still behind her, they were pushed into a corner of the dining room. J fell to the ground onto her back and was unable to get up as she was wedged between dining chairs and the sliding door. Whilst she was on the ground, the appellant grabbed M around the throat and pushed her so that she had her back to the wall standing near J’s head. At one stage the appellant was standing with his feet either side of J’s legs. He punched M’s head and upper body with a clenched fist whilst holding her by the throat. M managed to grab the appellant’s arm and bend it over throwing him off balance. She pushed him to make some space for J to get up. She tried to run away but the appellant grabbed her by the hair, pushing her into an internal brick wall. She pushed the appellant away, ran into the kitchen, and rang the police. The appellant then picked J up off the ground and threw her onto the dining table causing her head to hit the table. He then left the house. The appellant was arrested, charged and released on bail later that evening. The bail agreement included a condition that the appellant not contact J or M.The injuries sustained by J and M

Evidence

Evidence Before The Court

The appellant contended that at the time of the offending he was suffering overwhelming distress that prevented him from exercising reason. It was submitted that the courts have observed that emotional stress may be relevant to an offender’s culpability.Ground 1.4: The significance of the guilty pleas and the attendant evidence of contrition – including the appellant’s cooperation with police and an offer to pay compensation It was submitted that on the day of the offending the appellant admitted to having attended at the home, having an intention to collect Jo Jo, having no plan to launch an attack, having been emotionally compromised, and to having attacked J and M in the context of having “lost it”. The appellant pointed to his Record of Interview where he admitted the assaults and that he caused injuries to both victims. The appellant argued that his only denial related to the mechanism by which count 1 was committed and, other than this, his admissions were comprehensive. He complained that the sentencing Judge failed to properly take into account his cooperation with police and his offer to pay compensation.The principles applicable to an appeal against sentence The sentencing Judge had a wide discretion in the exercise of the sentencing power. This Court will not interfere simply because it considers that the sentence is more or less severe than it would have imposed. It will not interfere merely because it would have exercised the discretion in a manner different from the sentencing Judge.[1][1] R v Wilton (1981) 28 SASR 362 at 363; Lowndes v The Queen (1999) 195 CLR 665 at 671-672. This Court can only substitute its decision for that of the sentencing Judge if the discretion has been wrongly exercised if the sentencing Judge has:·acted upon a wrong principle;·taken into account an extraneous or irrelevant consideration;·failed to take into account a material consideration;·acted upon a mistaken view of the facts;·passed a sentence which is manifestly inadequate or excessive.[2][2] House v The King (1936) 55 CLR 499 at 504-505. It is not enough if this Court would have attached greater or lesser weight to a certain matter so as to arrive at a different conclusion.[3][3] Police v Chilton (2014) 120 SASR 32; R v Lutze (2014) 121 SASR 144; R v Wheeler [2015] SASCFC 83.Analysis J said in her statement that, whilst the appellant was never violent toward her, he did suffer from alcohol related issues and that she had not really gotten along with him since they separated. The appellant complained that the Judge’s characterisation of the offending as “having significant consequences for the two women” is inconsistent with the nature of the offending committed against J. This complaint fails to take into account that J’s injuries include the psychological sequelae she described in her victim impact statement. Nor does it take into account that the offending against J was an act of domestic violence committed against a former spouse.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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