R v Oake

Case [2017] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v OAKE

[2017] SASCFC 82

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Nicholson and The Honourable Justice Parker)

14 July 2017

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

The Director of Public Prosecutions appeals against a sentence imposed in the District Court. The respondent separately appeals against the same sentence. The sentencing Judge estreated a bond associated with a suspended sentence and imposed a cumulative sentence for the breaching offence.  He then ordered that the resultant sentence be suspended under s 33B of the Act and served on home detention. The Director contended that the Judge was not empowered to suspend the resultant sentence and sought permission to appeal.

Held (Vanstone J, Parker J agreeing; Nicholson J agreeing in separate reasons): Permission to appeal is granted. The appeal is allowed. A home detention order is a form of suspension.  This precludes a court from further suspending a sentence which was previously suspended but later subject to an order for revocation. The matter is remitted to the District Court for resentencing. It is unnecessary to deal with the respondent’s appeal.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 20AAC, s 33B, s 33BD, s 38, s 58; Criminal Law Consolidation Act 1935 (SA) s 340, s 353; Offenders Probation Act 1913 (SA) s 9, referred to.
R Neal [2017] SASCFC 44; R v Willett [2017] SASCFC 62; Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453; The Palace Gallery Pty Ltd v WorkCover Premium Review Panel & Anor (2014) 119 SASR 408; Police v Bicanin [2011] SASC 108; R v Wilson [2016] SASCFC 139; Police v Moraldo [2005] SASC 479; R v Young [2016] SASCFC 102; R v Brougham [2015] SASCFC 75; R v Fusco [2017] SASCFC 47; R v Kong (2013) 115 SASR 425; R v Buckman (1988) 47 SASR 303; House v The King (1936) 55 CLR 499; R v Bui (No 2) [2016] SASCFC 80; R v Buckskin [2010] SASC 138; R v McLean [2013] SASCFC 144; DPP v Stone (1994) 63 SASR 297; R v Jeffries [2004] SASC 188; McGarry v The Queen (2001) 207 CLR 121; Strong v The Queen (2005) 224 CLR 1; R v Tyler [2016] SASCFC 7; R v Irvine [2016] SASCFC 104; R v Saunders [2011] SASCFC 37; Johnson v SA Police (Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995); Reynolds v R (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, 22 October 1995); Wonnocott v The Department of…

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AGLC
R v Oake [2017] SASCFC 82
Case
[2017] SASCFC 82
Decision Date

CaseChat Overview and Summary

The case involved an appeal by the Director of Public Prosecutions against a sentencing order made by a judge of the District Court. The respondent had been sentenced for manufacturing methylamphetamine, had breached a subsequent bond, and then committed an offence of aggravated causing harm with intent. The sentencing judge had revoked the suspension of a previous sentence but then ordered that the sentence be served by way of home detention, a decision challenged by the Director.

The primary legal issue before the court was whether the sentencing judge had the power to order a previously suspended sentence, the suspension of which had been revoked, to be served by way of home detention. The Director contended that such an order was beyond the court's lawful authority under the relevant provisions of the Sentencing Act. The court also considered the principles governing the grant of permission for a prosecution appeal against sentence, including the need to demonstrate material error and the public policy considerations that outweigh the interest in finality of sentencing.

The court agreed with the Director's submission that the sentencing judge lacked the power to order the revoked suspended sentence to be served on home detention. It reasoned that once the suspension of a sentence was revoked, the original sentence was to be carried into effect, and there was no statutory power to then suspend that sentence again on home detention conditions. Consequently, the term of imprisonment imposed for the subsequent breaching offence could not be suspended on home detention either. The court noted that this issue of power had not been raised or argued before the sentencing judge.

The court found that the Director's contention was correct and that the order suspending the original sentence on home detention conditions was without lawful authority and invalid. It followed that the subsequent suspension of the term of imprisonment for the breaching offence was also invalid. The court therefore allowed the Director's application for permission to appeal.

Orders

Orders of the court

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Background

Background to the litigation

Argument on the two applications was heard at the same time. However, given the approach I have taken with respect to the Director’s application for permission to appeal, the respondent’s application lacks utility and ought to be dismissed.Further background On 15 July 2010, the respondent was sentenced for the offence of manufacturing methylamphetamine. She was released on a bond to be of good behaviour. The bond contained a condition that she was to return to be sentenced in the event of breach. The respondent breached the bond by again committing the offence of manufacturing methylamphetamine. On 22 August 2012, the respondent was sentenced to imprisonment for seven months for the initial manufacturing offence and for 18 months for the second manufacturing (breaching) offence, to be served cumulatively. A non-parole period of 12 months was fixed. The total period of two years and one month was suspended upon the respondent entering into another bond to be of good behaviour. The respondent breached this bond by testing positively for the use of illicit substances and by failing to report for supervision on four occasions. The breaches were excused save that the bond period was extended by one year. It was this bond, as extended, that was breached when the respondent committed the offence of aggravated causing harm with intent to cause harm. It is not necessary for the factual basis of the breaching offence and for the respondent’s personal circumstances to be set out at this stage. There is no challenge by either party to the head sentence of two years and three months imposed by the Judge for the aggravated causing harm with intent offence. There is a challenge to the reduction of the suspended head sentence. However, given the manner by which I would dispose of the Director’s application, it will not be necessary to review the non-parole period or to give consideration to the factual basis of the breaching offence and the respondent’s personal circumstances for this purpose.The Director’s primary contention At the time of sentencing, the respondent was subject to a term of imprisonment that had been suspended in reliance on the power to suspend conferred by section 38(1) of the Sentencing Act. The Judge was not persuaded that the breach of bond was trivial or that there were proper grounds to excuse the breach and therefore was obliged[3] to revoke the suspension and “order that the sentence be carried into effect”.[4] The Judge did this but went on to order that the sentence thus brought into effect be served on home detention rather than in custody. The Director submits that there is no power to make such an order with respect to a sentence the suspension of which has been revoked pursuant to section 58. I agree with this submission. I note that the issue of power was not raised or argued before the Judge during submissions. It appears to have been common ground that the approach adopted by the Judge was within power.[3] Sections 58(1)(d) and 58(3) of the Sentencing Act.[4] Subject to the power to reduce the term of the suspended sentence in accordance with section 58(4) of the Sentencing Act which power the Judge, in this case, exercised.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

VANSTONE J (dissent) NICHOLSON J (dissent)
For these reasons, I agree with the Director’s contention that an order suspending on home detention conditions the original sentence imposed with respect to the two manufacturing methylamphetamine offences would be without lawful authority and invalid. It follows that the term of imprisonment imposed with respect to the breaching offence also could not be suspended whether on home detention conditions or otherwise.[19] Prosecution applications for permission to appeal against sentence and conclusion with respect to ground three[19] Section 33BB(2)(a)(ii) and section 38(2)(a) of the Sentencing Act. Section 38(2a) cannot apply to the breaching offence because the prison term imposed exceeds one year. In R v Young,[20] Blue J provided the following summary of the approach to be adopted with respect to a prosecution appeal against sentence.[21][20] [2016] SASCFC 102; (2016) 126 SASR 41 at [145]-[148] (Blue J with whose reasons Doyle J agreed).[21] See also the more extended discussions by Peek J in R v Brougham [2015] SASCFC 75; (2015) 122 SASR 546 and Doyle J in R v Fusco [2017] SASCFC 47.On a sentencing appeal by the prosecution, mere establishment of material error by the sentencing Judge is insufficient to justify the grant of permission to appeal. The Court must be persuaded that there are public policy considerations that outweigh the public interest in protecting persons from having their liberty twice placed in jeopardy.In R v Osenkowski, King CJ (with whom White J agreed) said:The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.In R v Nemer, Doyle CJ said:Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence. ... However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case.In R v Payne, Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ said: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.[footnotes omitted]

Ratio Decidendi

Legal Principle Established

Established by:

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