R v Parsons - [2019] SASCFC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PARSONS
[2019] SASCFC 43
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly and The Honourable Justice Bampton)
3 May 2019
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for permission to appeal against sentence – where applicant found guilty following a retrial of five counts of aggravated causing harm with intent to cause harm and two counts of aggravated assault – whether the judge erred in not reducing the applicant’s non-parole period by the time spent in custody and on home detention – whether the sentence is manifestly excessive.
Held per Bampton J (Kelly J agreeing), refusing permission to appeal – no error which would justify this Court’s intervention has been identified – the sentence is not manifestly excessive.
Sentencing Act 2017 (SA) s 44; Criminal Law Consolidation Act 1935 (SA) s 24, s 20, referred to.
R v Tsonis (2018) 131 SASR 416; R v Malakouti [2018] SASCFC 115; Kentwell v The Queen (2014) 252 CLR 601, applied.
R v Palmer [2016] SASCFC 34, distinguished.
R v Malesevic (1999) 204 LSJS 32, discussed.
R v Pahuja (No 2) (1989) 50 SASR 551; R v MacGowan [2012] SASCFC 138; R v Devries [2018] SASCFC 101; R v Singh [2018] SASCFC 89; R v Deng [2015] SASCFC 176; R v Franceschini (2015) 123 SASR 396, considered.

R v PARSONS
[2019] SASCFC 43
Court of Criminal Appeal: Kelly and Bampton JJ

KELLY J: I agree.
BAMPTON J: Following a retrial before a jury in the District Court, Mr Parsons and his co-accused were found guilty of five counts of aggravated causing harm with intent to cause harm and two counts of aggravated assault committed in the early hours of 1 January 2013.
On 28 August 2018, Mr Parsons was sentenced by a District Court Judge to a sentence of nine years’ imprisonment reduced by one year, on account of nine months spent in custody and an allowance of three months for time on home detention bail, to eight years’ imprisonment. A non-parole period of four years and six months was fixed. The sentence was backdated to the date Mr Parsons was taken into custody following the jury’s verdict on 22 March 2018.
Mr Parsons seeks permission to appeal on two grounds:
1.The sentencing Judge erred in not reducing the non-parole period by the time spent in custody and on home detention; and
2.The sentence imposed is manifestly excessive and fails to take into account the evidence of Mr Parsons’ increased maturity and lifestyle changes.
Background
In the early hours of 1 January 2013, Mr Parsons and two or three other males approached a partygoer, Mr Ushenin, and his wife, who were on their way home from a New Year’s Eve party that had been held on a private tennis court in Panorama. Without provocation, one male struck Mr Ushenin and, almost immediately, the other males present joined in, striking him multiple times to his head and upper body (count 1). The blows caused a laceration through the full thickness of Mr Ushenin’s lip and he sustained bruising to his body. Mr Parsons and the males then left Mr Ushenin on the ground and made their way to Mr Parsons’ house. They gathered reinforcements and, as part of a larger group, returned to the tennis court.
Members of the group armed themselves with bats, pieces of wood, and sticks. Once on the tennis court, Mr Parsons and the group of males launched an unprovoked attack on the partygoers, described by the sentencing Judge as follows:
The attack was merciless and unrelenting. It occurred in the presence of women and children. Each of the offenders was part of a joint enterprise to assault and cause harm and each is responsible for the acts of the other members of the attacking party which comprised at least 10 persons. …
Significant injuries were dealt to a number of the victims who were the party goers and the attack did not end until [Mr Parsons’ co-accused] had the end of his nose bitten off in the course of the attack. The offenders and the others then all retreated in the same cowardly fashion in which they had appeared.
… The injuries that the two offenders are responsible for, either directly or as part of a joint enterprise, include a fractured skull, a fractured eye socket, a man knocked unconscious, plus injuries to the person assaulted in the street.
Mr Parsons and his co-accused were found guilty of:
1.Aggravated causing harm with intent to cause harm against Mr Ushenin (count 1).
2.Aggravated causing harm with intent to cause harm committed against Mr Bell (count 2). Mr Bell was struck to his head with a plank of wood, rendering him unconscious and leaving him with no memory of events proximate to the assault.
3.Aggravated causing harm with intent to cause harm committed against Mr Bonnett (count 3). Mr Bonnett was struck to the head with a plank of wood, rendering him unconscious and fracturing his right eye socket. Further blows were delivered to Mr Bonnett’s upper body as he lay unconscious on the ground.
4.Aggravated assault committed against Mr Nevis (count 4). Mr Nevis was punched to his body.
5.Aggravated causing harm with intent to cause harm committed against Mr Separovich (count 5). Mr Separovich was struck to the forehead with a length of wood, causing him to fall to the ground unconscious. At the time Mr Separovich was struck, he was kneeling down near the unconscious Mr Bell attempting to assist him. Mr Separovich’s skull was fractured by the blow and a laceration to his forehead required some 40 stitches to close.
6.Aggravated assault committed against Mr Oussatchev (count 6). Mr Oussatchev was confronted by three males as he moved towards the unconscious Mr Bell. Punches were thrown by the three males towards Mr Oussatchev. He wrestled with Mr Parsons’ co‑accused and they went to the ground. While on the ground with the co-accused on top of him, Mr Oussatchev was kicked to the sides of his body.
7.Aggravated causing harm with intent to cause harm committed against Mr Katsman (count 7). Mr Katsman’s arm was hit by a bat when he put his arm up to protect his face. Mr Katsman was then punched in the face. He suffered a bloodied nose, along with bruising to his arm and body.
The aggravating circumstance of counts 1, 4, and 6 was that the offences were committed in company. The aggravating circumstances of counts 2, 3, 5, and 7 were the use, or threat of use, of offensive weapons in committing the offences and commission of the offences in company.
The previous trial on the same Information and the successful appeal
Mr Parsons and his co-accused were earlier tried before another District Court jury and found guilty on 11 June 2015 of the same seven counts set out above.
On 25 September 2015, Mr Parsons was sentenced by Judge Stretton to 10 years’ imprisonment with a non-parole period of five years. The sentence was backdated to 19 May 2015, the date Mr Parsons was taken into custody on a bench warrant after not complying with his conditions of bail during the trial.
Mr Parsons successfully appealed that conviction and a retrial was ordered.[1]
[1] R v Parsons; R v Brady [2015] SASCFC 183.
Home detention bail
Following the Court of Criminal Appeal’s order for a retrial, Mr Parsons was granted home detention bail on 18 February 2016, having spent a period of nine months in custody, from 19 May 2015 to the grant of home detention bail. He then spent just over one year and five months, from 18 February 2016 to 25 July 2017, on home detention bail. He spent seven days in custody in October 2016 upon being sentenced for offences of failing to comply with his bail agreement and driving under disqualification. On 25 July 2017, home detention bail was varied to a supervised bail agreement which was revoked on 22 March 2018 following the jury verdict on the retrial.
Sentencing submissions following the retrial
During sentencing submissions following the retrial, Mr Parsons’ counsel submitted that whilst on home detention bail Mr Parsons had commenced working as a cabinetmaker, had reconciled with his long-term partner and had become a father. Statements from Mr Parsons’ partner and her father were tendered in support of submissions that Mr Parsons had matured and rehabilitated.
The appeal
Mr Parsons’ submissions
Mr Parsons complained that the Judge deducted time in custody and the allowance for time spent on home detention bail only from the head sentence and not the non-parole period. It was submitted that when a sentencing court is unable to backdate a sentence of imprisonment and thereby give credit for time spent in custody referable to the offending, the preferred approach is to reduce both the head sentence and the non-parole period by the time spent in custody.[2] It was contended that such an approach ensures that the days a prisoner spends in custody prior to their sentence are equated to the days in custody during their sentence.
[2] R v Singh [2018] SASCFC 89 at [12] per Blue J; R v Deng [2015] SASCFC 176 at [42] per Nicholson J; R v Franceschini (2015) 123 SASR 396 at [24] per Nicholson J.
Mr Parsons complained that the sentencing Judge did not identify any basis for not deducting time spent in custody and allowance for home detention from the non-parole period. He submitted that given the sentencing Judge moved to impose a non-parole period immediately after making the reduction from the head sentence, it is possible the failure to reduce the non-parole period is an oversight. If not an oversight, he submitted it is an error given that there existed no proper reason not to give full credit for time spent in custody and on home detention bail.
Mr Parsons was taken into custody partway through his trial before Judge Stretton because of his repeated failures to comply with his bail agreement. It was submitted that at the time of the sentence before Judge Stretton, Mr Parsons’ performance on bail had been poor and indicative of a lack of maturity and an inability to comply with court orders. However, following the grant of home detention bail, Mr Parsons demonstrated compliance with the restrictions of home detention bail and supervised bail. It was submitted that he was a “different prisoner” to the one Judge Stretton had sentenced. Yet despite this, the non-parole period imposed by the sentencing Judge was effectively higher than that imposed by Judge Stretton.
Mr Parsons contended that the sentence imposed by the Judge of eight years’ imprisonment with a non‑parole period of four years and six months represents a lengthier sentence in relation to the non-parole period than that imposed three years earlier by Judge Stretton. Mr Parsons said that this was despite his positive changes in the time since the sentence was imposed. Mr Parsons submitted that there was no material difference in the evidence given at the trial before Judge Stretton as compared to the trial before the sentencing Judge. He also submitted that the sentence of Judge Stretton could form a useful yardstick against which the present sentence can be measured. He submitted that a sentencing Judge is not bound by an earlier sentence, but that regard should be had to it. In support of this submission he cited White J, with whom Bollen J agreed, who said in R v Pahuja (No 2):[3]
A sentencing judge who is sentencing on a second occasion is not obliged to order the same sentence as that ordered by the first judge if he is convinced that the former sentence was manifestly excessive or manifestly inadequate. Apart from that, however, the second judge would have regard to and generally order the same sentence.
Mr Parsons submitted that an improvement in his personal circumstances was the only point of difference between the matter as before Judge Stretton and the sentencing Judge.
[3] (1989) 50 SASR 551 at 562.
Finally, Mr Parsons submitted that he was liable to serve a minimum total period in custody of five and a half years, being the total of his current non-parole period added to the time (nine months in custody, plus three months allowance for home detention) he had already spent in custody prior to sentencing. As such, Mr Parsons argued that the sentence is manifestly excessive.
The respondent’s submissions
The Director of Public Prosecutions (“the Director”) pointed out that the sentencing Judge found that Mr Parsons was at the forefront of the attacks both outside the premises and on the tennis court, and that he was a significant, willing, and active participant. The Judge also remarked that Mr Parsons had time to reflect between the events outside the premises and those on the tennis court, yet he continued.
The non-parole period of four years and six months represents 50 percent of the sentence of nine years imposed before the deduction of 12 months. It is 56.25 percent of the resulting head sentence of eight years.
The Director submitted that when regard is had to the head sentence, the sentencing Judge imposed a sentence that is one year less than that imposed by Judge Stretton. The non-parole period of five years imposed by Judge Stretton was 50 percent of the head sentence of 10 years.
The Director submitted that if Mr Parsons’ non-parole period was reduced by 12 months, the resulting non-parole period would be three years and six months. This would represent only 38.89 percent of the sentence of nine years imposed before the deduction of 12 months and 43.75 percent of the resulting head sentence. The Director argued that such a result would be disproportionately low.
Analysis
Proposed ground 1
Section 44(2)(a) of the Sentencing Act 2017 (SA) gives a sentencing Judge a discretion to take into account the time a defendant has spent in custody and make an appropriate reduction in the term of the sentence.
As submitted, a sentencing Judge exercises a very broad discretion in determining any reduction for time spent on home detention bail.[4] There is no obligation on a sentencing Judge to identify any reduction for home detention bail.[5]
[4] R v Tsonis (2018) 131 SASR 416 at [86].
[5] R v Malakouti [2018] SASCFC 115 at [53]-[54].
The Director submitted that the Judge did identify how he exercised his discretion. His Honour reduced the time spent in custody by a further three months for the time Mr Parsons had spent on home detention bail. It was submitted that his approach in giving credit for time spent in custody and an allowance for home detention bail was transparent and there was no error. In R v Tsonis, the Court said:[6]
When reducing a sentence for time served a common approach is to fix both the head sentence and non-parole period, and then reduce both for the time served. The sentencing judge in this case took a different approach. His Honour reduced the head sentence for time served and then fixed a non-parole period by reference to this reduced head sentence; he did not directly reduce the non-parole period for time served. While perhaps not the usual or preferable approach, the approach adopted by the sentencing judge is permissible as long as the time served is not overlooked when fixing the non-parole period.[7] Given that the sentencing judge in this case fixed the non-parole period in the very next sentence following reference to the time served, and imposed a relatively modest non-parole period, we are not satisfied that his Honour did overlook this matter.[8]
(Footnotes in original)
[6] (2018) 131 SASR 416 at [71].
[7] R v Malesevic (1999) 204 LSJS 32 at [35]-[47]; R v Rowe [2016] SASCFC 33 at [25]-[28]; R v Hudson (2016) 125 SASR 171 at [26]-[27].
[8] cf R v Malesevic (1999) 204 LSJS 32 at [47] where the Court did infer error on the part of the sentencing judge.
In R v Malesevic, Doyle CJ, with whom Bleby and Wicks JJ agreed, considered the giving of credit for time spent in custody and held:[9]
…. it is appropriate for the Court to bear in mind that the extent of the credit given will depend upon whether the period for which credit is given is deducted from the head sentence and the non-parole period, or only from the head sentence and before a non-parole period is calculated. However, in my opinion it cannot be said that the approach advocated by counsel for the appellant is necessarily the correct one and must be adopted. …
The final issue for the sentencing judge in the sentencing process is the fixation of an appropriate non-parole period, taking into account all of the circumstances relevant to that process, and also bearing in mind any time already spent in custody. As long as the judge makes proper allowance for time spent in custody, complaint cannot validly be made on the basis that the judge failed to take one approach rather than the other to the fixation of the non-parole period. The important thing is that the non-parole period reflect the gravity of the crime, as well as the other matters that should be taken into account: see R v Creed (above). It is permissible, and usually simpler and more convenient, to fix the non-parole period in relation to the final head sentence arrived at, rather than to fix a notional non‑parole in relation to a notional head sentence, and then to make deductions from each of them.
[9] (1999) 204 LSJS 32 at [38]-[39].
In this matter, the Judge, like the sentencing Judges in Tsonis and Malesevic fixed the non‑parole period in the very next sentence following reference to time served. In R v Palmer[10] and Malesevic, the non-parole periods successfully appealed were in the region of two-thirds of the head sentences. I agree with the Director’s submission that the sentencing Judge in this matter imposed a relatively modest non-parole period. I also agree that this demonstrates that the time served has not been overlooked by the Judge when fixing the non-parole period.
[10] [2016] SASCFC 34.
As this Court has noted, whilst there is no range within which non-parole periods fall, the need for punishment and protection will generally result in a non‑parole period of between 50 percent to 60 percent of the head sentence. As the Director submitted, non‑parole periods either side of this range reflect either adverse or favourable circumstances.[11]
[11] R v MacGowan [2012] SASCFC 138 at [20]-[21]; R v Palmer [2016] SASCFC 34 at [23]-[28]; R v Devries [2018] SASCFC 101 at [18].
In sentencing Mr Parsons, the Judge had to ensure that there was an appropriate relationship between the head sentence and the non‑parole period he fixed.
I agree with the Director’s characterisation of Mr Parsons’ personal circumstances. They were not so unusual or uncommon that a non-parole period representing around 40 percent of the head sentence was warranted.
Another judge may have structured the sentence so that a deduction for time in custody and an allowance for home detention was made to the head sentence and the non- parole period. In my view, it is not reasonably arguable that the way the Judge structured Mr Parsons’ sentence arriving at the resulting head sentence and fixing the non‑parole period did not properly account for time spent in custody and on home detention bail.
Proposed ground 2
The maximum penalty for aggravating causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) is 13 years’ imprisonment. The maximum penalty for aggravated assault contrary to s 20(3) of the CLCA is three years’ imprisonment.

The sentencing Judge structured a sentence that reflected Mr Parsons’ personal circumstances including his maturity and the fact that he had become a father. The Judge noted his employment history, that following the order for retrial he obtained work as a cabinetmaker, and that two reports “as to his work ethic” had been tendered from the company he worked for. The Judge referred to the letters provided by Mr Parsons’ partner and her father. He noted that the proceedings had been “hanging over his head for some time due to mistrial and the successful appeal”. He also noted that Mr Parsons had been found guilty of summary offences of violence.
The Judge expressed his view that the guilty verdicts “were fairly obvious and inevitable in the face of the evidence and the unmeritorious defences” put forward. His Honour said that Mr Parsons was not to be punished for exercising his right to a defence but that he could not, therefore, offer much consideration for contrition.
The sentence arrived at by the Judge for offending he described as “disgraceful and demanding of the imposition of significant penalty” was within “the permissible range of sentences for offender and the offence”.[12]
[12] Kentwell v The Queen (2014) 252 CLR 601 at [35].
Mr Parsons’ offending involved unprovoked attacks with weapons and in company on innocent persons leaving seven victims, some of whom suffered significant injuries. It is not reasonably arguable that the sentence is manifestly excessive.
Conclusion
Having regard to the gravity of Mr Parsons’ offending and the deterrent purposes of punishment, I do not consider the sentence to be manifestly excessive. No error which would justify this Court’s intervention has been demonstrated. For these reasons, I would refuse permission to appeal.