R v Parrott

[2018] SASCFC 78

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PARROTT

[2018] SASCFC 78

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Lovell and The Honourable Justice Doyle)

14 August 2018

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 - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - SENTENCE

The appellant was charged with the offence of Recklessly Causing Serious Harm in breach of s 23(3) of the Criminal Law Consolidation Act 1935 (SA). The appellant eventually pleaded guilty to the lesser offence of Recklessly Causing Harm in breach of s 24(2). After a reduction of 10% on account of the plea the appellant was sentenced to 3 years imprisonment with a non-parole period of 18 months.

The appellant appealed against the sentence imposed on the ground that it was manifestly excessive.

Held by Lovell J (Peek and Doyle JJ agreeing), allowing the appeal:

1. A starting point of 3 years and 4 months imprisonment is outside the permissible range of sentences.

2. The appellant is to be resentenced to imprisonment for 2 years and 3 months with a non-parole period of 14 months. Both the sentence and the non-parole period are to run from 13 December 2017.

Criminal Law Consolidation Act 1935, s 23(3), 24(2), referred to.
House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Dransfield [2016] SASCFC 68; R v Teremoana (1990) 54 SASR 30, considered.

R v PARROTT
[2018] SASCFC 78

Court of Criminal Appeal: Peek, Lovell and Doyle JJ

PEEK J:

1. I agree with the orders proposed by Lovell J and with his reasons.

   LOVELL J:

   Overview

2. On 10 October 2015, the appellant went to the house of the victim to confront him about an incident that had occurred at the place at which both men worked. The appellant struck the victim to the head with an open hand. The victim fell, hitting his head on a pillar and on the ground; he suffered significant injuries. After a plea of guilty and a reduction of 10% on account of the plea, the appellant was sentenced in the District Court of South Australia to 3 years imprisonment with a non-parole period of 18 months. On appeal, the appellant contended that the sentence was, in all the circumstances, manifestly excessive. For the reasons that follow, I would allow the appeal and resentence the appellant.

   The offending

3. The appellant and the victim had been friends for many years. The victim employed the appellant at his golf business. On 2 October 2015, there was an incident at work which resulted in the victim sending the appellant home because of the way he had spoken to another employee.

4. On the night of 10 October 2015, the appellant went to the house of the victim at about 8.45pm to confront the victim about this incident. The victim’s wife and children were also at home. The appellant knocked on the front door and the victim came out to speak with him. The appellant said words to the effect that the victim had betrayed him.  The appellant struck the victim to the head with either a very forceful slap or push. This application of force caused the victim to hit his head on a brick pillar and then fall to the ground, hitting his head again. The victim suffered a fractured skull and intracranial bleeding.  The victim suffers from permanent brain damage resulting in various disabilities including some memory loss, difficulty in concentrating, mood swings, anxiety and stress. He has some permanent hearing loss in one ear. The victim had been an elite professional golfer; the injuries have affected his business and his ability to compete on the Seniors tour.

5. The appellant was originally charged with Recklessly Causing Serious Harm. He eventually pleaded guilty to the offence of Recklessly Causing Harm in breach of s 24(2) of the Criminal Law Consolidation Act 1935 (SA). For reasons discussed later, the circumstances in which the appellant pleaded guilty are important.

   Was the sentence imposed manifestly excessive?

6. The Sentencing Judge considered that the starting point for sentence was a term of imprisonment for a period of 3 years and 4 months. To allow for his plea of guilty, the Sentencing Judge deducted 10% from the sentence and imposed a period of imprisonment of 3 years. He set a non-parole period of 18 months. The maximum penalty for the basic offence of Recklessly Causing Harm is 5 years imprisonment. The maximum penalty for the offence of Recklessly Causing Serious Harm is 15 years imprisonment.

7. The imposition of an appropriate sentence involves the exercise of judicial discretion based on an assessment of various factors such as the circumstances in which the offending was committed and the character and antecedents of the offender.

8. The appellant contended that there was an “outcome error” as no specific “process error” could be identified. The appellant accepted that the Sentencing Judge in his remarks appropriately identified the legal principles involved. However, the appellant submitted that the Sentencing Judge gave such weight to the serious harm in fact suffered by the victim that the appellant was in effect sentenced for the offence of recklessly causing serious harm and not the offence of recklessly causing harm.

9. The principles that apply to an appellate court reviewing an exercise of a discretion are well established and understood. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the Sentencing Judge; what must be established is that the exercise of the discretion has been infected by some error, or alternatively that the decision ultimately made is on its face unreasonable or plainly unjust.[1] Gleeson CJ, Gummow, Hayne and Callinan JJ considered the task of the appellate court in Markarian v The Queen,[2] saying:

   As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.[3]

   (Citations omitted)

   [1]    House v The King (1936) 55 CLR 499 at 504-5; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 [76].

   [2] (2005) 228 CLR 357.

   [3]    Markarian v The Queen (2005) 228 CLR 357 at 370-71 [25].

10. Here the appellant submitted that the severity of the sentence indicated some underlying process error had taken place although it is not possible to identify it.[4] It was submitted that it could be inferred from the result that there was “a failure properly to exercise the discretion which the law reposes in the court of first instance”.[5] Thus it is contended that the final sentence of the judge was “unreasonable or plainly unjust”.

    [4]    R v Hili (2010) 242 CLR 520 at 543 [75]

    [5]    House v The King (1936) 55 CLR 499 at 505.

11. As to the approach to be adopted, King CJ observed in R v Morse:[6]

    There is no suggestion that the learned sentencing Judge made any error of fact or law or that he failed in any way to take into account the relevant considerations. This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[7]

    [6] (1979) 23 SASR 98.

    [7]   R v Morse (1979) 23 SASR 98 at 99

12. Similarly in R v Nemer,[8] Doyle CJ (Prior and Vanstone JJ agreeing) provided a summary of the purposes and objectives of the sentencing process:

    The sentencing of offenders who have committed serious crimes is difficult.

    The judge must impose a sentence arrived at by following the requirements of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). This requires consideration, putting things generally, of the penalty fixed by Parliament (usually a maximum only is specified), of the circumstances of the offence and of all of the matters affecting the sentence that are found in the Sentencing Act.

    The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.

    In different cases these considerations will operate in different ways and to differing degrees. As has been said, these considerations are no more than guideposts to the appropriate sentence and sometimes they point in different directions: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.[9]

    [8] (2003) 87 SASR 168.

    [9]    R v Nemer (2003) 87 SASR 168 at 170 [4]-[7].

13. Thus what reveals manifest excess (or inadequacy) of a sentence is consideration of all the matters that are relevant to fixing the sentence. As the High Court observed in Hili v The Queen:[10]

    As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.[11]

    (Citations omitted)

    [10] (2010) 242 CLR 520

    [11]   Hili v The Queen (2010) 242 CLR 520 at 538-9 [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

14. When considering a submission that a sentencing judge failed to give adequate weight to a particular factor, Vanstone and Parker JJ observed in R v Lutze:[12]

    A submission that the sentencing judge did not give adequate weight to a factor is not, of itself, capable of enlivening the appeal court’s authority to intervene. Such a submission falls short of an assertion that no account was taken of a material consideration. It is not a complaint of specific error. At most it can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the judge have reached a sentence which is so unreasonable or plainly unjust, or, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”.[13]

    [12] (2014) 121 SASR 144.

    [13]   R v Lutze (2014) 121 SASR 144 at 154 [47].

    The Sentencing Judge’s remarks

15. As discussed earlier, the appellant was originally charged with Recklessly Causing Serious Harm. He eventually pleaded guilty to Recklessly Causing Harm. Having acknowledged the plea to the lesser offence and the fact that the maximum penalty was thereby reduced, the Sentencing Judge said:

    There is no doubt that you caused serious harm. The prosecution accepts, however, that you were reckless about causing some harm but not serious harm when you assaulted the victim.

    … This is a serious example of the offence of recklessly causing harm. …The need for deterrence of such offences is significant.

    … It is clear that you are to be sentenced on the basis that you were reckless as to causing harm, not serious harm. This is a fine distinction. The question of whether an assailant adverts to the risk of serious harm or merely harm during the course of an assault has a sense of unreality about it, but I am bound to draw that distinction in light of the charge you currently face, and the comments of the Supreme Court in several cases, including a case called Dransfield and another one called Teremoana. The extent of the harm caused is a significant factor in sentencing for this offence, notwithstanding the degree of recklessness involved. The seriousness of the victim’s injuries makes this a serious example of the offence.

    (Emphasis added)

16. It can be accepted that this is a serious example of the offence of recklessly causing harm. However, the Sentencing Judge referred to the difference between the two offences as “a fine distinction”. Whether an assailant adverts to the risk of serious harm or merely harm may be a fine distinction but for the purpose of fashioning an appropriately proportionate sentence it is a very important one.

17. The facts of R v Dransfield,[14] the case referred to by the Sentencing Judge, are instructive. During the course of an argument the accused punched the victim with a closed fist to the head. The blow was struck with a lot of force. CCTV showed that the victim was unconscious before he hit the ground. The blow was “extremely forceful and skilfully administered”.[15]

    [14]   R v Dransfield [2016] SASCFC 68.

    [15]   R v Dransfield [2016] SASCFC 68 at [6].

18. The victim suffered very severe injuries and, like the victim in this matter, was left with significant ongoing disabilities. The accused pleaded guilty to the more serious charge of Recklessly Causing Serious Harm (maximum 15 years imprisonment).

19. Regarding the difference between s 23(3) and s 24(2), which the Sentencing Judge in this case referred to as a “fine distinction”, Nicholson J (with whom Peek and Doyle JJ agreed) in Dransfield observed:

    There are two differences between the two offences which render one significantly more serious than the other and which justify the parliament’s decision to provide for such a substantial difference in the maximum penalties. First, under section 23(3) the injuries caused must, in fact, amount to “serious harm”, whereas under section 24(2) they need only amount to “harm”. Second, as far as the necessary mental element for each offence is concerned, under section 23(3) the offender must be found to have been reckless with respect to the causing of serious harm rather than merely reckless with respect to the causing of harm. If only the latter were to be established, then only an offence under section 24(2) of recklessly causing harm will be made out even if, as a matter of fact, “serious harm” resulted.

    … By his plea, the appellant admitted that he was aware that the striking of the victim in the way he did carried with it a substantial risk that this could result in serious harm, that is, harm that endangered the victim’s life or that could result in serious and protracted impairment of a physical or mental function or that could result in serious disfigurement of the victim.  Being so aware, the respondent engaged in the conduct notwithstanding that risk (and without adequate justification).  Recklessness is more than mere negligence or mere carelessness or acting or omitting to act merely without thinking about the consequences; an active thought process is engaged. ^[16] 

    [16]   R v Dransfield [2016] SASCFC 68 at [16], [21].

20. The appellant accepted that the Sentencing Judge was entitled, to some extent, to consider the level of harm actually suffered by the victim. However, the appellant submitted that the Sentencing Judge went further than simply taking the level of harm into account, and in fact elevated that consideration such as to, in effect, sentence the appellant for the offence of Recklessly Causing Serious Harm. The appellant submitted that the combination of the Sentencing Judge’s characterisation of the harm as “serious”, his reference to the extent of the harm being a “significant factor” and his characterisation of the difference in the mental elements of recklessness as a “fine distinction” demonstrate that he placed undue emphasis on the injuries caused to the victim such as to sentence the appellant on the basis of a more serious offence than that to which he pleaded guilty. This, the appellant submitted, led to a sentence being imposed that was manifestly excessive.

21. The respondent submitted that the Judge applied the correct sentencing principles. In particular, the respondent submitted that a sentence for Recklessly Causing Harm can include an awareness of the substantial risk of harm at the upper end of harm, provided it does not constitute serious harm.[17]

    [17]   R v Teremoana (1990) 54 SASR 30 at 40.

    Personal circumstances of the appellant

22. At the time of sentencing the appellant was 42 years old.  He had a good work history with specialised qualifications as a drain layer. He was fully employed at the time of sentence.

23. Significantly, apart from some minor matters when he was a juvenile, he had largely led a law-abiding life. The appellant had a conviction for driving disqualified in 2000.

24. A psychological report dated 8 October 2017, tendered on behalf of the appellant, identified that the appellant suffered from post-traumatic stress disorder, adjustment disorder with mixed anxiety and depressed mood, and obsessive-compulsive disorder. The report also noted that the appellant was subject to child sexual abuse at the age of 12 and had attempted suicide at the age of 15. These mental health issues are serious and long standing.

    Discussion

25. Returning to the facts of this case, it was accepted by the prosecution that the appellant struck the victim with an open hand. The prosecution accepted that the appellant did not consider that there was a substantial risk that serious harm could result from his actions. These are both significant factors when considering sentence in addition to the substantially lower maximum penalty of this offence to that of an offence under s 23(3).

26. The appellant accepted that the Sentencing Judge was entitled, to some extent, to take into account the level of harm actually suffered by the victim. However as discussed, the appellant submitted that the Sentencing Judge gave too much weight to the degree of actual harm suffered by the victim such that he allowed that factor to overwhelm the factual basis of the offending and his personal circumstances.

27. The maximum penalty for the offending was 5 years imprisonment. The starting point of the Sentencing Judge, before a reduction for the guilty plea, was a sentence of imprisonment for 3 years and 4 months. That is, the Judge commenced with a sentence that was two thirds of the maximum available.

1. However, the blow struck was with an “open hand”. The requisite mental element was that the appellant realised that there was a substantial risk that harm may occur but he proceeded nonetheless. This is not a case of a “coward’s” punch.

2. Any offence involving violence is treated seriously by the courts. General deterrence is always a significant factor to be taken into account. However, as Nicholson J in Dransfield observed, being reckless as to serious harm “involves much greater culpability” than being reckless as to mere harm.[18] The appellant did not contemplate that serious harm would arise.

   [18]   R v Dransfield [2016] SASCFC 68 at [32].

3. As was stated by the High Court in Hili, a finding that a sentence is manifestly excessive is a conclusion, one “that does not admit of lengthy exposition.”[19]

   [19]   Hili v The Queen (2010) 242 CLR 520 at 539 [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

4. I agree with the submissions of the appellant. In my view, the starting point of 3 years and 4 months imprisonment is outside the permissible range of sentences for the offender and the offence.[20]

   [20]  I note that in Dransfield, the starting point of the sentence of the appellant for the offence of recklessly causing serious harm was less than that of this appellant.

5. I would allow the appeal. I would set aside the sentence imposed and resentence the appellant.

   Re-sentence

6. I would start with a sentence of 2 years and 6 months imprisonment. It was accepted that the appropriate discount for the plea of guilty is 10%. Allowing for the plea, the sentence is reduced to 27 months imprisonment.

7. I would fix a non-parole period of 14 months.

8. I have considered whether the sentence of imprisonment should either be suspended or served on home detention. We have not heard submissions on whether the appellant should be sentenced under the Criminal Law (Sentencing) Act 1988 (SA) as it stood at the time of the original sentence or under the amendments to that Act that came into force on 30 April 2018. In my view, the differences between the two regimes are of no significance in this matter. As nothing turns on the point, I refrain from expressing an opinion as to whether the amendments apply to this matter or not.

9. I have considered whether good reason exists to suspend the sentence. Given the serious nature of the offending, despite the previous good character of the appellant, I am unable to find that good reason exists to suspend the sentence. I refuse to do so.  Nor do I consider taking into account all the circumstances that it would be appropriate for the sentence to be served on home detention. I decline to make that order.

10. Both the sentence and the non-parole period are to commence from 13 December 2017.

    Order

11. The appeal is allowed and the sentence imposed on 13 December 2017 is set aside.

12. The appellant is sentenced to 2 years and 3 months imprisonment with a non-parole period of 14 months. Both the sentence and non-parole period are to run from 13 December 2017.

    DOYLE J:

13. I agree with the reasons of Lovell J. For the reasons he gives, I would allow the appeal and resentence in accordance with the orders proposed by his Honour.