SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v NELSON
[2017] SASCFC 40
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
8 May 2017
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CONSEQUENCES OF OFFENCE OR IMPACT ON VICTIM
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - SUBSTANCE ABUSE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
Appeal against sentence imposed by District Court for one count of causing serious harm with intent to cause serious harm. Defendant was sentenced to four years imprisonment reduced by 20% in recognition of guilty plea, resulting in a head sentence of three years and three months and a non-parole period of one year and six months. Applicant submitted that this is a rare and exceptional circumstance where permission to appeal against sentence should be granted, that the starting point of four years was manifestly inadequate, and that this inadequacy affected the non-parole period which was proportionately low compared to the head sentence. Respondent submitted that there was no process error as the sentencing judge had regard to all relevant matters and that while the sentence was merciful there was not an outcome error.
Held, per Parker J (Kourakis CJ and Nicholson J agreeing), allowing permission to appeal and allowing the appeal:
1. This is a rare and exceptional case that requires the grant of permission for the Crown to appeal.
2. The fact that the offence occurred against a background where the defendant had very recently been released after a period of imprisonment imposed for two assaults on a different female drinking companion operated to reduce the leniency that his personal circumstances might otherwise have attracted.
3. The sentence did not give appropriate effect to the views consistently expressed by this Court concerning the need to give significant weight to considerations of specific and general deterrence when sentencing defendants who have engaged in serious domestic violence.
4. The sentence imposed by the District Court is set aside and a starting point of imprisonment for six years and six months is adopted. After allowing a discount of approximately 20% on account of guilty plea, a head sentence of imprisonment for five years and a non-parole period of three years is imposed.
Criminal Law Consolidation Act 1935 s 23, s 340, referred to.
Bugmy v The Queen (2013) 249 CLR 571; Munda v State of Western Australia (2013) 249 CLR 600, discussed.
Mason-Stuart v The Queen (1993) 61 SASR 204; Neal v The Queen (1982) 149 CLR 305; Neil Inkamala Minor (1992) 59 A Crim R 227; R v Abdulla (2005) 93 SASR 208; R v Everett (1994) 181…
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- AGLC
- R v Nelson [2017] SASCFC 40
- Case
- [2017] SASCFC 40
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Full Court was whether to grant the Crown permission to appeal against the sentence. The Court was required to determine if the circumstances were rare and exceptional, justifying intervention in the original sentence. This involved considering whether the sentence was so disproportionate to the seriousness of the crime as to require correction to maintain adequate standards of punishment and public confidence in the administration of justice. The Court also had to consider the principles governing Crown appeals against sentence, including the reluctance to expose a defendant to double jeopardy and the criteria for granting leave as established in cases like *R v Payne*.
The Court reasoned that permission to appeal against sentence should only be granted in rare and exceptional circumstances, typically to establish a matter of principle, provide guidance to sentencing judges, or correct a sentence that is so disproportionate as to undermine public confidence. The Court found that the sentencing process had miscarried because the sentence failed to maintain adequate standards of punishment for serious domestic violence offences. It concluded that both the head sentence and the non-parole period were manifestly inadequate.
Consequently, the Court granted permission for the Crown to appeal and upheld the appeal. It imposed a revised head sentence of five years imprisonment, with a non-parole period of three years, after adopting a starting point of six years and six months and applying a 20% discount for the guilty plea. The revised sentences were ordered to operate from the date the defendant was taken into custody.
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
Ratio Decidendi
Legal Principle Established
It was also submitted that the fact that the defendant had previously undergone ritual spearing as a traditional punishment should ameliorate the need for personal deterrence.[4][4] Neil Inkamala Minor (1992) 59 A Crim R 227.Consideration The Court will only grant permission to the Crown to appeal against a sentence in rare and exceptional circumstances.[5] That reflects the reluctance of the common law to expose a defendant to double jeopardy by being sentenced on a second occasion for the same offence.[6] Leave will not be granted merely because an error may have been made. The proper approach to Crown applications for permission to appeal against sentence was described by the Court of Criminal Appeal (comprising five judges) in R v Payne as follows:[7]Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained: see Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299-300; Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212-213.[5] R v Everett (1994) 181 CLR 295 at 299-300.[6] Malvaso v The Queen (1989) 168 CLR 227 Deane and McHugh JJ at 234.[7] (2004) 89 SASR 49 at 70 (Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ). To obtain leave to appeal against sentence the Crown must do more than satisfy the court that an error may have been made. The Director did not submit that it is necessary to grant permission to appeal in this instance so as to establish or maintain sentencing principles or standards. Thus the question is whether permission should be granted because the sentence is so far below the appropriate range of sentence that it reflects an error of principle such that allowing the sentence to stand would shake public confidence in the administration of justice. For the reasons that follow I am satisfied that this is a rare and exceptional case that requires the grant of permission for the Crown to appeal. If permission is granted for a Crown appeal, s 340 of the Criminal Law Consolidation Act 1935 directs that the Court must impose the sentence that “should have been imposed in the first instance”. Hence, the double jeopardy principle does not apply to resentencing should the Court grant leave to appeal.[8][8] R v Abdulla (2005) 93 SASR 208 and R v Kong (2013) 115 SASR 425. In R v Hughes; R v Rigney-Brown the Full Court noted that sentencing may often involve a “tension between the competing sentencing purposes which judges must balance when punishing offenders for crimes borne out of great social, educational and financial impoverishment”.[9][9] [2016] SASCFC 126 at [7].