R v P, NJ (No 3)

Case [2008] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v P, NJ (No 3)

[2008] SASC 63

Reasons for Ruling of The Honourable Justice Layton

6 March 2008

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - GENERALLY

Applicant convicted in 2003 of wounding with intent to cause grievous bodily harm and acquitted of attempted murder - Accused sentenced to 7 years, with 4 years non-parole - Victim since deceased - Applicant now charged with murder - Application to stay prosecution on basis that provisions of Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) ("Amending Act") and the amendments it effected to Criminal Law (Sentencing) Act 1988 (SA) ("Sentencing Act") expose applicant to double punishment - Amending Act amended Sentencing Act and introduced mandatory minimum non-parole period of 20 years for murder - Whether a sentence of mandatory minimum non-parole period for murder can be backdated to reflect time already spent in custody with respect to offence of wounding with intent to cause serious bodily harm pursuant to s 30(2) of the Sentencing Act - Whether sentence for murder, in light of amendments, can be backdated pursuant to s 30(1) of Sentencing Act - Whether the imposition of a mandatory minimum non-parole period can make appropriate allowance for common elements of offence of wounding with intent to cause grievous bodily harm and offence of murder.

Held: Wording of s 30(2) of Sentencing Act would not allow reduction of mandatory minimum non-parole period for murder to reflect time already spent in custody in relation to the offence of wounding with intent to cause grievous bodily harm – Amendments to Sentencing Act does not prevent the Court from backdating a sentence for murder to take account of a period spent in custody pursuant to s 30(1) of the Sentencing Act - Allowance can be made in sentencing for a mandatory minimum non-parole period to take account of common elements of offence of wounding with intent to cause grievous bodily harm and offence of murder - No warrant for permanent stay of proceedings - Rule 8 application dated 5 February 2008 dismissed.

Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) s 11; Criminal Law (Sentencing) Act 1988 (SA) ss 30(1), 30(2), 30(4), 32, 32A, referred to.
R v Colson (1999) 73 SASR 407, applied.
Johnson v R (2004) 205 ALR 346; Mill v R (1988) 166 CLR 59; Pearce v R (1998) 194 CLR 610; R v Wallis (1949) 78 CLR 529, discussed.
Commissioner of Stamps v Telegraph Investment Pty Ltd (1995) 184 CLR 453; David Grant & Co Pty Ltd v Westpac (1995) 184 CLR 265; Downey v Trans Waste Pty Ltd (1991) 172 CLR 167; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; R v P, NJ [2003] SASC 308; R v P, NJ [2006] SASC 309; R…

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R v P, NJ (No 3) [2008] SASC 63
Case
[2008] SASC 63
Decision Date

CaseChat Overview and Summary

The case of R v P, NJ (No 3) involves the accused, P, NJ, who was convicted in 2003 of wounding with intent to cause grievous bodily harm and acquitted of attempted murder. He was sentenced to seven years in prison with a non-parole period of four years. The victim later died, leading to the accused being charged with murder. The accused applied for a permanent stay of the prosecution on the grounds that the provisions of the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) and the amendments it effected to the Criminal Law (Sentencing) Act 1988 (SA) would expose him to double punishment. The court was required to determine whether the amendments to the Sentencing Act allowed for the reduction of a mandatory minimum non-parole period for murder to reflect time already spent in custody for the offence of wounding with intent to cause grievous bodily harm, and whether the sentence for murder could be backdated to account for the time spent in custody.

The court held that the wording of section 30(2) of the Sentencing Act would not allow for the reduction of the mandatory minimum non-parole period for murder to reflect time already spent in custody for the offence of wounding with intent to cause grievous bodily harm. However, the amendments to the Sentencing Act did not prevent the court from backdating a sentence for murder to account for a period spent in custody under section 30(1) of the Sentencing Act. The court also found that allowance could be made in sentencing for a mandatory minimum non-parole period to take account of the common elements of the offence of wounding with intent to cause grievous bodily harm and the offence of murder. Consequently, there was no warrant for a permanent stay of the proceedings, and the Rule 8 application dated 5 February 2008 was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

P, NJ (“the accused”) is charged on an Information in the Supreme Court of South Australia with the offence of murder. He seeks a permanent stay of the proceedings. This stay is sought on the basis that by virtue of the provisions of the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) and the amendments which it effected to the Criminal Law (Sentencing) Act 1988 (SA), the accused is thereby exposed to double punishment. Background On 15 August 2003, after a trial before a Judge alone in the Supreme Court of South Australia, the accused was acquitted of attempted murder and convicted of wounding with intent to cause grievous bodily harm.[1] The particulars of the charges were that on 24 September 2002 at Thevenard the accused attempted to murder H, or in the alternative maliciously wounded H with intent to do grievous bodily harm. At the trial, the prosecution case was that the accused had attacked H with a knife resulting in a wound to the side of H’s head. As a result of the attack H suffered severe brain damage. [1] R v P, NJ [2003] SASC 308. On 29 August 2003, the trial Judge sentenced the accused to seven years imprisonment with a non-parole period of four years, to commence on 26 September 2002, being the date upon which he was taken into custody. On 28 June 2004, 21 months after the stabbing, H died. On 4 January 2006, an Information for murder was laid against the accused. The prosecution alleges that the stabbing caused H’s death. On 26 September 2006, the accused became eligible for parole but has remained in custody pending the hearing of the murder charge. This is the second application for stay of the prosecution. The accused made his first application for stay of the prosecution on 5 September 2006 on the basis that it was an abuse of process (“the First Application”). On 5 October 2006, I rejected the accused’s application and the Court of Criminal Appeal upheld my decision on 20 April 2007.[2] Special leave to appeal to the High Court of Australia was refused on 26 November 2007. [2] R v P, NJ (No 2) [2007] SASC 135. On 5 February 2008, the accused made his second application for stay of the prosecution (“the Second Application”). I heard the application on 29 February 2008.The Second Application As indicated earlier, the basis of the Second Application concerns the enactment of the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007 (SA) and the amendments it effected to the Criminal Law (Sentencing) Act 1988 (SA). Section 32 and 32A Criminal Law (Sentencing) Act 1998 (SA) On 1 November 2007, the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) was amended by the Criminal Law (Sentencing) (Dangerous Offends) Amendment Act 2007 (SA) (“the Amending Act”). For present purposes, the Amending Act amended s 32(5) and also inserted a new s 32A to the Sentencing Act. By s 11 of the Amending Act, the amendments were made retrospective. I will for convenience refer to these amendments collectively as “the combined amendments”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Another matter also raised in the course of argument before me was whether there could be any such backdating of a period of sentence for murder, to a date earlier than the date upon which the offence of murder crystallised, which was not until death occurred on 28 June 2004. In relation to this argument, I note that there are common ingredients of the offence of wounding with intent to cause grievous bodily harm and those of murder as contained in my earlier reasons,[18] and those of the Court of Criminal Appeal.[19] These ingredients would have occurred at the time of the stabbing on 24 September 2002. The death, which occurred later, is a causal element relying on the proof of additional matters. In such circumstances the Court would not be prevented from backdating the term of imprisonment to reflect the common ingredients. To do otherwise, in my view, would offend the principles set forward in the case of Pearce.[20] Indeed, if one returns to the concerns of the Chief Justice in R v Colson,[21] this situation would amount to “exceptional circumstances” which appropriately should be taken into account by the Court in fixing sentence in this case, if the accused is convicted of murder.[18] R v P, NJ [2006] SASC 309, [33] [40].[19] R v P, NJ (No 2) [2007] SASC 135, [18].[20] (1998) 194 CLR 610.[21] (1999) 73 SASR 407.Conclusion Therefore for the above reasons, I reject the accused’s arguments and conclude that there is no warrant for a permanent stay of these proceedings on the basis that he would be exposed to double punishment if found guilty of murder. Consequently, I dismiss the Rule 8 application dated 5 February 2008.

Ratio Decidendi

Legal Principle Established

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