R v NEILSON
[2016] SASCFC 90
•19 August 2016
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 90Court 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 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
J suffered a headache, a lump on her elbow and a sore back as a result of the assault.
M suffered a lump on her forehead, grazes and a sore, red neck. The most serious injuries inflicted on M were to her right eye. A CT scan revealed a medial wall fracture of the right orbit and a fracture involving the floor of the right orbit with entrapment of the eye muscle.
Six months after the assault, M underwent an operative procedure to improve the appearance and movement of her eye. Despite the operation achieving some eye movement, her ability to look up is still compromised and she is left with ongoing pain.
Both J and M continue to deal with the psychological consequences of the appellant’s assaults upon them.
The sentence
The appellant’s guilty pleas entitled him to reductions of the sentences that would otherwise have been imposed of up to 10 per cent for count 1 and up to 20 per cent for count 2.
The Judge indicated a separate sentence for each offence. He made appropriate reductions for the pleas of guilty and acknowledged that both offences arose from one incident. He imposed a final head sentence of two years’ imprisonment. A non-parole period of 10 months was fixed.
The Judge said that, notwithstanding the appellant’s lack of prior history for violence and otherwise good character, he did not consider that good reason existed to suspend the sentence. His Honour described the appellant’s conduct as “seriously violent with significant consequences to two women”.
The appellant’s submissions
The appellant submitted that both offences arose from a single incident and that there was no background of animosity, let alone violence, between him and J. The appellant pointed to J’s statement where she acknowledged that he has never been violent toward her.
The appellant submitted that he attended the former matrimonial home with a view to collecting his old dog to perform the unenviable task of taking him to the vet to have him put down. As the dog was not released into his care, the argument and the offending ensued. He submitted that the incident was short‑lived. He spoke to police later that evening and made admissions to having entered the former matrimonial home, having lost his temper, and having physically engaged with J and M.
Particulars of the ground of appeal
The appellant advances the following four particulars of his ground of appeal.
Ground 1.1: The appellant’s personal circumstances – inclusive of his advanced age, his unblemished history and the absence of any risk of further offending
The appellant was aged 57 at the time of the offending and had no history for violence or aggressive behaviour. During his police interview, the appellant said he was not proud of his actions, he had never touched a woman in his life, it was the most embarrassing thing he had done in his life, and he could not defend it.
The appellant submitted that the absence of antecedents, the absence of any background of animosity, and compliance with his bail render reoffending highly unlikely. He contended that the unique constellation of events that gave rise to the admitted offending, his cooperation with police, and his contrition support that conclusion. The appellant complained that the sentencing Judge’s comment, “notwithstanding your lack of a history of violence and your apparent otherwise good character”, when finding that good reason did not exist to suspend the sentence, falls well short of a proper consideration of the character and antecedent behaviour of the appellant.
Ground 1.2: The relatively brief and wholly isolated nature of the incident that gave rise to the admitted charges
The appellant argued that there was no evidence to suggest that he was possessed of any relevant propensity to behave in the way he did. He contended that the concessions he had made in the context of his property settlement with J are demonstrative of this.
The appellant submitted that the incident was brief and not part of a course of conduct. It was submitted that the only preparation for attendance at the former matrimonial home to collect the dog was the arrangement of the inscribed concrete slab to mark Jo Jo’s burial. All of the surrounding circumstances, including the text message sent to his former wife, indicated the appellant was not angry let alone planning a violent attack.
The appellant argued that the characterisation of the sentencing Judge of the offending as “having significant consequences for the two women” is inconsistent with the nature of the offending committed against the appellant’s former wife. It was contended that J’s injuries were confined to a headache, a lump on her elbow and a sore back.
Ground 1.3: The antecedent circumstances of the admitted charges – the severe emotional distress experienced by the appellant culminating in an uncharacteristic and short-lived loss of control
It was submitted that the appellant’s mental and emotional state was compromised by:
·the grief he was suffering by the fact that Jo Jo was suffering from ill health and had to be put down;
·a situation where he perceived he was being deprived of involvement in Jo Jo’s final days;
·that he had endured the end of a relationship he had had with J which had commenced in his early teens; and
·that at the time of the offending his brother-in-law was gravely unwell.
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.
When interviewed by the police, the appellant described that his offending had occurred:
… over something fucking stupid, over a dog, anyhow, in saying that it’s probably been building up for a long fucking time so anyhow, 40 years.
(Emphasis added)
Further, the comments made by the appellant about M during the interview suggest that he was frustrated and annoyed by J’s relationship with M.
The authorities referred to by counsel regarding provocation are not relevant to this matter. It would appear that the appellant’s conduct was brought about by a loss of self-control, triggered by a number of undoubtedly stressful events underpinned by feelings that had been “building up” over time.
All of the matters pertaining to the appellant’s personal circumstances detailed in the four particulars of the ground of appeal including his age, his unblemished history and the apparent absence of any risk of further offending were acknowledged by the Judge in his sentencing remarks. I consider all of those favourable matters are reflected in the head sentence arrived at by the Judge and the fixing of a non-parole period of approximately 42 per cent of the head sentence.
The appellant complained that the sentencing Judge, whilst considering all matters personal to him in arriving at the sentence, failed to address them when considering whether good reason existed to suspend the sentence. The Judge was not required to recount those matters one by one when referring to the issue of suspension. He specifically addressed all those matters in his remarks in arriving at the sentence. In stating that good reason did not exist to suspend the sentence, the Judge referred to the personal matters he had already detailed in a summative way saying “notwithstanding your lack of a history of violence and your apparent otherwise good character”.
The sentencing Judge had regard to all of the appellant’s personal circumstances and, as required, balanced the circumstances against the seriousness of the offending in that:
·whilst it was isolated and short-lived, it has left J and M with psychological consequences and M with enduring physical injury;
·the assaults were inflicted in J and M’s home, a place where they are entitled to feel safe; and
·the offending against J was an act of domestic violence and such offending is innately serious and far too prevalent in the community.
I agree with the Judge’s characterisation of these offences. Notwithstanding the personal circumstances of the appellant, his conduct and the need for general and personal deterrence called for an immediate term of imprisonment. The decision not to suspend the sentence was well within the sentencing Judge’s discretion.
The appellant has not demonstrated that “it was not open to the Judge to find that there was not good reason for suspending the sentence, in exercise of the power conferred by s 38(1) of the Sentencing Act”.[4]
[4] R v Jongewaard [2009] SASC 346 at 42 (Doyle CJ).
I would dismiss the appeal and order that the appellant be taken back into custody to serve the sentence.
DOYLE J: I agree.
Key Legal Topics
Areas of Law
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Criminal Law
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Evidence
Legal Concepts
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Sentencing
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Appeal
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Charge
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Intention
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