R v Parsons

Case [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

  1. KELLY J:             I agree.

  2. 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.

  3. 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.

  4. 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

  5. In the early hours of 1 January 2013, Mr Parsons and two or three other males approached a…

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R v Parsons [2019] SASCFC 43
Case
[2019] SASCFC 43
Decision Date

CaseChat Overview and Summary

Mr Parsons sought permission to appeal against a sentence imposed by a judge following a retrial. He had been found guilty of five counts of aggravated causing harm with intent to cause harm and two counts of aggravated assault. The dispute centred on whether the sentencing judge had erred by not reducing the applicant's non-parole period to account for time already spent in custody and on home detention, and whether the overall sentence was manifestly excessive, particularly in light of evidence of the applicant's increased maturity and lifestyle changes. The application was heard by Kelly and Bampton JJ.

The legal issues before the Court of Appeal were whether the sentencing judge made an error in the sentencing process by failing to give credit for pre-sentence custody and home detention, and whether the imposed sentence was so excessive as to be manifestly unjust. These grounds of appeal required the court to consider the principles of sentencing, including the gravity of the offences, the need for deterrence, and the appropriate consideration of mitigating factors.

The Court, per Bampton J with Kelly J agreeing, refused permission to appeal. Their Honours found no error in the sentencing judge's approach that would warrant intervention. The court considered the applicant's offending, which involved unprovoked attacks with weapons and in company, resulting in seven victims, some with significant injuries. The court concluded that, given the gravity of the offending and the importance of deterrence in sentencing, the sentence imposed was not manifestly excessive. Consequently, no error justifying interference with the sentence had been demonstrated.

Orders

Orders of the court

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Background

Background to the litigation

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; and2.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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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