R v Partridge

Case [2008] SASC 323

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PARTRIDGE

[2008] SASC 323

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)

21 November 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - DISPARITY - CO-OFFENDERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - ROLE OF GUILTY PLEA OR DEPOSITIONS

Appeal against sentence – infant child died while in care of his mother and appellant – the mother and appellant pleaded guilty to criminal neglect of infant – the mother and appellant tried separately – the mother sentenced to term of imprisonment of 6 years, and non-parole period of 4 years and 6 months – appellant sentenced to term of imprisonment of 10 years and non-parole period of 6 years and 6 months – in committing offence of criminal neglect, appellant breached a suspended sentence good behaviour bond of 15 months’ imprisonment – trial Judge revoked bond and ordered that suspended sentence be brought into effect – appellant sentenced to cumulative term of imprisonment of 11 years and 3 months, and non-parole period of 7 years and 3 months – whether appellant’s head sentence manifestly excessive – whether appellant sentenced on incorrect factual basis – whether appellant’s sentence disproportionate to sentence imposed upon the mother – whether trial Judge failed to give adequate weight to factors personal to appellant – whether adequate reduction given for appellant’s guilty plea.

Held, dismissing the appeal:  Head sentence and non-parole period imposed by trial Judge were within discretion and appropriate – appellant sentenced on correct factual basis –disparity between appellant’s and the mother’s sentences was justified on facts of case – appellant’s offending was aggravated due to breach of suspended sentence good behaviour bond – trial Judge’s reduction in sentence for appellant’s guilty plea within discretion and appropriate – any reduction in appellant’s sentence due to particular hardship suffered by him in protective custody de minimis – trial Judge’s failure to make reduction in this regard does not justify a reduction of appellant’s overall sentence.

Criminal Law Consolidation Act 1935 (SA) s 14; Criminal Law Consolidation (Criminal Neglect) Amendment Act 2005 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 58(1)(d), referred to.
The Queen v MacGowan (1986) 42 SASR 580; R v Readman (1990) 47 A Crim R 181; Cameron v The Queen (2002) 209 CLR 339; R v Shannon (1979) 21 SASR 442; The Queen v Slater (1984) 36 SASR 524; R v Golding & Golding (1980) 24 SASR 161; R v Liddy (No 2) (2002) 84 SASR 231; Police v Dyke (Unreported, Supreme Court of South Australia, King J, 1 August 1997); R v Healey (Unreported, Supreme Court…

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AGLC
R v Partridge [2008] SASC 323
Case
[2008] SASC 323
Decision Date

CaseChat Overview and Summary

In the case of R v Partridge, the appellant appealed against the sentence imposed on him by the trial Judge, following his conviction for criminal neglect of an infant child. The infant child, David Mamo, died while in the care of the appellant and the mother, who had also pleaded guilty to the offence. The mother was sentenced to a term of imprisonment of 6 years, with a non-parole period of 4 years and 6 months. The appellant was sentenced to a term of imprisonment of 10 years, with a non-parole period of 6 years and 6 months. The trial Judge revoked the appellant’s suspended sentence good behaviour bond of 15 months’ imprisonment and ordered that it be brought into effect, resulting in a cumulative term of imprisonment of 11 years and 3 months, with a non-parole period of 7 years and 3 months. The appellant argued that his head sentence was manifestly excessive, that he was sentenced on an incorrect factual basis, and that his sentence was disproportionate to the sentence imposed upon the mother. The appellant also claimed that the trial Judge failed to give adequate weight to factors personal to him and that the reduction for his guilty plea was insufficient.

The legal issues the court was required to decide were whether the head sentence and non-parole period imposed by the trial Judge were within the appropriate range for the offence and the offender, whether the appellant was sentenced on the correct factual basis, whether the disparity between the appellant’s and the mother’s sentences was justified, whether the trial Judge adequately considered factors personal to the appellant, and whether the reduction for the appellant’s guilty plea was appropriate. The court held that the head sentence and non-parole period imposed by the trial Judge were within the range of sentences appropriate for the offending and this offender. The court found that the appellant was sentenced on the correct factual basis, that the disparity between the appellant’s and the mother’s sentences was justified on the facts of the case, that the trial Judge’s reduction in sentence for the appellant’s guilty plea was within the court’s discretion and appropriate, and that any reduction in the appellant’s sentence due to particular hardship suffered by him in protective custody was de minimis. The court concluded that the trial Judge’s failure to make such a reduction did not justify a reduction of the appellant’s overall sentence.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The defendant’s offending is of the type where general deterrence must play a significant part in the sentencing process. Offences of this nature against young children who are helpless, extremely vulnerable and totally dependent upon others are particularly serious. This Court has a responsibility to act to protect the weak and vulnerable. If a child dies in circumstances such as the present, then it is incumbent upon the Court to make it clear to the community that such conduct will result in a substantial term of imprisonment. Background David Mamo’s death resulted from a severed bowel, caused by a blow or blows to the stomach. The pathologist who performed the post-mortem was of the opinion that the injuries were caused by blunt force to the abdominal area, either by an object, a fist or by a foot stomping on the abdominal area. The child also suffered injuries to his pancreas, and very extensive bruising to his back, head, neck and limbs. The pathologist noted extensive and clearly evident bruising to much of the child’s body. There was no pattern to the bruising. In her opinion the bruising could have been caused by punches from an adult fist or forceful prodding with a finger. There was also scarring on the child’s body. The pathologist considered that the bruises were more extensive than would be ordinarily expected in a young boy. She was of the opinion that multiple blows would be required to cause the bruising and the scars. The pathologist observed injuries which would have been inflicted some days before. She concluded that death resulted from recent injuries, being within hours of their infliction. A paediatrician concluded that there was no explanation as to how the fatal injuries were sustained. He was of the opinion that the severed bowel would not have been caused by a fall from a swing or from fighting with another child. He considered that the fatal injury must have been inflicted some time during the night of 14 February 2006. On this night, the child was in the care of Ms Field and the defendant. No other person was present or had the opportunity to have caused the child’s death. The child had been the victim of extreme abuse. The Criminal Law Consolidation Act was amended in 2005[2] in order to overcome problems in cases in which a defendant is one of a number who had the opportunity to kill or seriously harm the victim and where, because no member of the group can be eliminated as the principal offender, it is not possible to identify the principal offender. In these circumstances neither a defendant nor any other member of the group can be convicted, either as a principal offender or an accomplice.[3] Commonly, offences of child neglect are committed by persons who have the immediate care of the child. Under the amended legislation, the offence is committed if a child is in the joint care of defendants, and they have failed to discharge their duty of care and have neglected the child who is obviously in need of care. In most cases, one of the persons charged will have caused the injuries. However, the injuries may have been caused by both. In the present proceedings the prosecution was unable to establish how the injuries were inflicted or who inflicted the fatal injuries. [2] The Criminal Law Consolidation (Criminal Neglect) Amendment Act 2005 (SA) inserted section 14 into the Criminal Law Consolidation Act 1935 (SA).[3] South Australia, Parliamentary Debates, House of Assembly, 12 October 2004, 333 (The Hon M.J. Atkinson, Attorney-General).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The sentence and non-parole period were within the range of sentences appropriate for the offending and this offender. In our view the sentence was the appropriate sentence.Conclusion The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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