R v Partridge - [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 of South Australia, Prior, Lander and Wicks JJ, 22 September 1998), considered.

R v PARTRIDGE
[2008] SASC 323
Court of Criminal Appeal: Gray, Sulan and David JJ
THE COURT

This is an appeal against sentence.
On 15 February 2006, David Arthur Mamo died in the Adelaide Women’s and Children’s Hospital. He was then 3 years of age.
The defendant, David John Partridge, was charged with the murder of David Mamo and, in the alternative, criminal neglect contrary to section 14 of the Criminal Law Consolidation Act 1935 (SA).[1] Shortly before the commencement of the trial, the defendant pleaded guilty to criminal neglect. The Director of Public Prosecutions accepted the plea in full satisfaction of the information.
[1] Section 14 of the Criminal Law Consolidation Act 1935 (SA) provides:
“Criminal liability for neglect where death or serious harm results from unlawful act
(1)A person (the “defendant”) is guilty of the offence of criminal neglect if—
(a)a child or a vulnerable adult (the “victim”) dies or suffers serious harm as a result of an unlawful act; and
(b)     the defendant had, at the time of the act, a duty of care to the victim; and
(c)the defendant was, or ought to have been, aware that there was an appreciable risk that serious harm would be caused to the victim by the unlawful act; and
(d)the defendant failed to take steps that he or she could reasonably be expected to have taken in the circumstances to protect the victim from harm and the defendant's failure to do so was, in the circumstances, so serious that a criminal penalty is warranted.
Maximum penalty:
(a)     where the victim dies—imprisonment for 15 years; or
(b)     where the victim suffers serious harm—imprisonment for 5 years.
On 10 July 2008 the defendant was sentenced to a term of imprisonment of 10 years for the subject offence. The defendant acknowledged that by the subject offending he had breached the terms of a suspended sentence bond entered into on 24 June 2005. The Judge revoked the suspension and ordered that the sentence of imprisonment of 15 months be brought into effect. This led to a total sentence to be served of 11 years and three months. A non-parole period of seven years and three months was fixed. The sentence was backdated to 17 March 2006 when the defendant was first taken into custody.
On 30 March 2007, Melissa Joanne Field, the mother of David Mamo and the defendant’s former partner, had been sentenced by another judge of this Court for the same offence. Ms Field was sentenced to imprisonment for six years, with a non-parole period of four years and six months.
The issues which arise are whether the defendant was sentenced on a correct factual basis, whether the sentence imposed was disproportionate to the sentence imposed upon Ms Field, whether the Judge failed to give adequate weight to factors personal to the defendant and whether adequate reduction was given on account of the defendant’s plea of guilty.
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).
David Mamo was ill throughout the night of 14 February 2006. He had vomited in his bed. Both Ms Field and the defendant were aware of his distress. They cleaned the child and remade his bed. The following morning he was distressed, continued to vomit and was generally unwell. He was too ill to go to school. Ms Field was suffering from tonsillitis and made an appointment to see a doctor that day. She proposed taking the child with her, but was dissuaded from doing so by the defendant. He suggested that the child was suffering a gastric virus and did not need to see a doctor. Ms Field attended the doctor by herself, leaving the child with the defendant.
David Mamo did not improve. The defendant filmed the child while he lay limp on a couch. The film shows a child who was conscious, motionless and obviously unwell. The defendant’s voice can be heard on this video, referring to the child in insulting and disparaging terms.
Late in the afternoon the defendant noticed that David Mamo was unconscious. Paramedics were called. They performed cardiopulmonary resuscitation and administered emergency first aid. The child was taken to the Women’s and Children’s Hospital. He died at about 7.00 pm.
The defendant was a regular user of amphetamine and cannabis. The defendant claimed to have been “stoned” as a result of drug abuse at the time of the death. This claim is not supported by the observations of others who saw him that day. The Judge was correct to reject the submission that the defendant’s judgment was impaired because he was under the influence of drugs.
The defendant was taken into custody on 17 March 2006 and charged with murder. In February 2008 he was attacked by another prisoner and received a serious facial injury which has left a lengthy scar. He has suffered ongoing psychological trauma and depression. Since the attack, the defendant has been held in protective custody within the South Australian prison system. Prisoners so held are subject to a harsher regime than the general prison population.
The Appeal
Gross Neglect
The Judge found that the defendant had formed a casual relationship with Ms Field over a period of several years. He had spent significant periods at Ms Field’s house and had become a father figure to her children.
When sentencing, the Judge observed that the blows causing death could only have been inflicted by the defendant or Ms Field. The defendant complained about this observation. It was submitted that the Judge sentenced on the basis that the defendant had contributed to the injuries that caused death. We disagree. When read in context, the Judge was making the observation that the injuries had been inflicted by the defendant or Ms Field. They were the only ones present at relevant times.
The Judge noted that the basis upon which the defendant had pleaded guilty was that he had not harmed David Mamo. The Judge did not accept the defendant’s assertion that he was not aware that the child had been assaulted. The Judge was correct to do so. The extensive bruising to the child’s body and head was clear evidence that he had been assaulted. The medical evidence that the injuries could not have resulted from the child falling or at play was unequivocal and unchallenged. The Judge did not sentence on the basis that the defendant had inflicted the injuries. The Judge said:
At the very least both of you must have known that something was seriously wrong with David and that he was suffering significant pain and discomfort. You could see that his behaviour was unusual, that he had bruises on his body, that he was physically ill to the point that he had been vomiting for in the vicinity of 24 hours.
On the appeal, counsel for the defendant submitted that there was no evidence to conclude that the defendant was aware that the child had been subjected to severe violence. This submission is untenable. It is factually incorrect. The child was covered in bruises. The defendant had assisted in cleaning his bed and showering the child during the night before his death. Counsel submitted this may have been done in the dark. Apparently this submission was made without regard to the evidence. The defendant had told the police in his record of interview that he had switched on the light when cleaning the child. The defendant must have observed that the child had been subjected to severe trauma.
David Mamo was in the care of the defendant on the day of his death. The defendant was aware that the child was very unwell and had been vomiting earlier that day and the night before. The Judge described the defendant’s conduct as demonstrating a complete disregard for the serious nature of the situation. The Judge regarded the defendant’s conduct in filming the child as evidencing a total insensitivity toward the child’s health, a feature of the defendant’s breach of duty of care and as evidence that the defendant’s conduct was grossly negligent. The defendant’s conduct was heartless and lacked any empathy for a seriously ill, vulnerable, dependent and defenceless infant.
The Judge observed that both the defendant and Ms Field must have known something was seriously wrong with David Mamo. He was suffering significant pain and discomfort. He had bruises on his body and had been physically ill for 24 hours. The Judge was correct to conclude that the defendant had shown a disregard for the serious nature of the situation.
Counsel for the defendant further submitted that the Judge was in error in describing the offending as being at the higher end of the scale of seriousness for this type of offending. It was contended that it was an error to characterise the defendant’s conduct in this way. It was said that the plea of guilty was made on the basis that the defendant’s criminal conduct was limited to an awareness that the child was ill over a 12-hour period, and in failing to assist by seeking medical attention earlier. Counsel argued that the defendant was sentenced on a different basis – that is, that the defendant was aware that the child had been assaulted and had suffered serious injury as a consequence and that, against that background, he had failed to obtain medical assistance for him.
It is not possible to avoid the conclusion that the defendant must have observed injuries to David Mamo and must have been aware that the child was extremely ill and had been vomiting for about 24 hours. In these circumstances, he failed to render proper assistance to the child in his care. Further, it was an aggravating factor that he encouraged Ms Field not to take the child to the doctor when she, herself, left the house to seek medical attention. This was not a case of a gross misjudgement but, rather, a case of gross neglect. The Judge was correct to characterise the defendant’s offending at the higher end of the scale of seriousness for this type of offending.
Disparity
The role of the Court of Criminal Appeal is to consider whether the sentences are within the range of sentences properly open on the facts and then to consider whether the Court should intervene, having regard to all the circumstances.
In MacGowan,[4] King CJ considered the principles which should govern the Court’s approach to sentencing co-offenders, and relevantly observed:[5]
Sentences imposed by different judges on co-offenders should … be proportionate to the respective degrees of culpability and the individual circumstances of the co-offenders. In such circumstances, a sentencing judge should ascertain the punishment which has been imposed upon any co-offender previously sentenced. [The Judge] should endeavour to assess a sentence which fairly reflects any relevant distinctions. If, however, the earlier sentence is, in the opinion of the judge imposing the subsequent sentence, outside the range of sentences properly applicable to the case, he may legitimately impose what [the Judge] regards as the appropriate sentence, leaving any correction of disparity to the Court of Criminal Appeal. The sentencing judge should give reasons explaining any disparity between the sentence which he imposes and earlier sentences imposed on co-offenders.
Marked disparity of sentences imposed upon co-offenders by different judges is a ground upon which the Court of Criminal Appeal may intervene on an appeal by the Attorney-General or an offender. If both sentences are within the maximum authorized by law and are within the range of sentences properly open on the facts of the case, the Court of Criminal Appeal is not bound to intervene. In such circumstances disparity, although a ground for interference, will not necessarily lead the Court of Criminal Appeal to interfere. It is a matter for the discretion of the Court. There may be considerations against interference. The protection of the public may require the higher sentence to stand. The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest. But in the absence of strong countervailing considerations, the Court of Criminal Appeal will interfere to eliminate marked disparities which cannot be justified in the circumstances of the case.
[4] The Queen v MacGowan (1986) 42 SASR 580.
[5] The Queen v MacGowan (1986) 42 SASR 580 at 582-583.
Counsel for the defendant submitted that there was a gross disparity between the sentences imposed upon the defendant and Ms Field. The sentencing Judge, in dealing with the defendant, commenced with 11 years and then reduced the sentence to ten years, having regard to the defendant’s plea. The starting point was higher in the case of the defendant.
It was submitted that the Judge, when sentencing, failed to identify the basis upon which he treated the defendant’s conduct more seriously than that of Ms Field. It was contended that her conduct was more culpable than that of the defendant, as she was the primary carer of David Mamo, and that the defendant’s conduct in respect of this offending was limited to conduct occurring in the 24 hour period prior to death.

Ms Field was charged with criminal neglect. On 30 March 2007, Perry J sentenced Ms Field, following her plea, to imprisonment for six years. A non-parole period of four years and six months was fixed. But for her plea of guilty, Ms Field would have been sentenced to imprisonment for eight years.
Perry J outlined the basis upon which Ms Field was sentenced. On 15 February 2006, David Mamo had been at home in her care. During the day he had been vomiting. Ms Field left the child alone with the defendant at about midday to attend a doctor’s appointment. Perry J noted the injuries to the child and observed that Ms Field was aware that he had been violently assaulted and was seriously injured when she left him in the care of the defendant. Ms Field was also aware that the defendant had been violent toward the child in the past.
Perry J further observed that, over a period of time, Ms Field had done nothing to remove or protect David Mamo from the defendant’s violence. This included the day of the child’s death. Ms Field failed to seek medical attention for him. Ms Field knew that the child had complained of the defendant’s conduct, yet she did nothing to protect him. Perry J considered that Ms Field’s conduct was aggravated by reason of her not taking the child to the doctor when she sought medical attention for herself.
Perry J accepted that Ms Field had not inflicted the fatal injuries. He noted that the defendant was awaiting trial on the charge of the murder. During his sentencing remarks, Perry J referred to Ms Field being pregnant at the time of the child’s death, and that she had since given birth to the defendant’s son.
Perry J concluded that, although Ms Field had been violent to David Mamo on an earlier occasion, she was not responsible for causing the injuries which resulted in the child’s death, but that she was aware that he had been the victim of an unlawful violent assault carrying with it the risk of serious harm, and yet she did nothing about it. Ms Field was sentenced on the basis that she was frightened of the defendant and had not left him because of her fear as to what he might do, and the fact that she was pregnant to him.
The Judge, when sentencing the defendant, addressed the difference between the defendant and Ms Field:
[Counsel for the defendant] also raised the issue of parity in relation to the sentence given to Ms Field. His submission was that your sentence should be significantly less than that imposed on her, which was six years with a non-parole period of four years and six months. The factual basis on which she was sentenced was different from the basis on which you now plead guilty. At the time she was sentenced you faced a murder charge. The sentencing judge sentenced Ms Field on the basis of her knowledge that you were violent towards David and that she failed to remove him from that situation.
There were distinguishing factors which in our view justified the Judge in imposing a more substantial sentence on the defendant. Ms Field left David Mamo in the care of the defendant at about midday on the day of his death. There was a significant period of about five hours during which it must have been obvious to the defendant that the child’s condition was deteriorating, yet he failed to seek assistance for the child. It was the defendant who had urged Ms Field not to take the child to the doctor. The defendant offered no explanation as to why he could not have taken the child to a doctor or to a hospital during the course of the afternoon, as the child’s condition deteriorated.
As earlier observed, Perry J accepted that Ms Field was in fear of the defendant and influenced by him in not taking David Mamo to the doctor for medical treatment. This is not an aggravating feature of the defendant’s conduct, as it was a matter that related to Ms Field’s state of mind, but it is a factor that influenced Perry J in the sentence that he imposed. To some degree, it mitigated, or at least explained, Ms Field’s failure to act.
A further distinguishing factor is that the defendant had a number of criminal antecedents. In January 2000, he breached parole and thereafter continued to offend. The defendant has served periods of imprisonment in 1999, 2000 and 2001. In June 2005, he was convicted of a number of offences, including common assault. He was sentenced to imprisonment for 15 months, with a non-parole period of ten months. This sentence was suspended on his entry into a supervised two-year good behaviour bond. In the circumstances, the defendant’s antecedents distinguished him from Ms Field. She had no relevant prior convictions. An incident some 14 years ago led to her appearance in the Youth Court for assault. She was then aged 15 years. No conviction was recorded.
The defendant’s offending was aggravated by this offending, being a breach of his suspended sentence good behaviour bond. It is an aggravating circumstance of a person’s offending if that person is subject to a good behaviour bond at the time he commits the offence.[6] It is also relevant that the defendant had been released on good behaviour bonds on previous occasions. In our view, this was a significant distinguishing feature between Ms Field and the defendant.
[6] See R v Readman (1990) 47 A Crim R 181 at 184; R v Flentjar [2003] SASC 361; R v Dunk [2008] SASC 290.
We consider that the sentence imposed upon the defendant was within the Judge’s sentencing discretion on the established facts and circumstances. It might be said that the sentence imposed upon Ms Field was at the lower end of the range, and this sentence was at the higher end of the range. Given the factors earlier identified, however, the sentence imposed on the defendant was fully justified.
Reduction For The Plea
The defendant submitted that the Judge failed to apply a sufficient reduction, having regard to the defendant’s plea of guilty.
It is accepted that a person who pleads guilty may be entitled to some allowance for his plea of guilty. In Cameron,[7] Gaudron, Gummow and Callinan JJ observed:
It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen it was said:
“a plea of guilty is ordinarily to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.”
It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.
Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial. The distinction in allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory.
[7] Cameron v The Queen (2002) 209 CLR 339 at [11]-[12] (footnotes omitted).
McHugh J referred to the practice of the State Supreme Courts in discounting sentences of those who plead guilty. His Honour referred to the approach of the Court in South Australia in Shannon,[8] in which King CJ and Cox J discussed the rationale for taking into account a plea of guilty as a matter of mitigation.
[8] R v Shannon (1979) 21 SASR 442.
In Slater,[9] King CJ, following Shannon, returned to the question:
The learned sentencing Judge quite rightly attached importance to the plea of guilty. He said:
“It is the clear policy of this Court, and perhaps a policy which needs to be restated in the light of recent congested lists and abortive trials, that accused persons who confess their guilt are entitled, generally speaking, to substantial credit for their plea, the amount of the credit dependent to some extent of course upon the strength of the case against them. But cases have occurred recently in England where sentences have been discounted by as much as 40% in recognition of an honest plea of guilty in circumstances in which the Crown might have been put to proof.”
I endorse his Honour’s observations, although I should perhaps point out that the consideration as to the strength of the case is pertinent rather to the significance of the plea of guilty as an indication of a desire to turn over a new leaf than to the policy considerations relating to overcoming congestion and delay. Those policy considerations have, however, lost none of their cogency since The Queen v. Shannon. Indeed, the problem of criminal trials collapsing on the eve or morning of trial has focussed attention on an aspect not mentioned in Shannon. The degree of co-operation in the administration of justice meriting a reduction in sentence is obviously considerably greater in the case of an offender who pleads guilty when he is first arraigned in the court than in the case of an offender who delays his plea of guilty until the morning of the trial when time of the court has been allocated and the witnesses and jurors summoned. I think that it is important, if the practical ends discussed in Shannon are to be served, that sentencing judges should make significant reductions in sentences in recognition of the co-operation in the administration of justice which the plea of guilty manifests and should explain that they are doing so. I think that it is important, too, that the reduction should be graduated according to the stage at which the plea of guilty is entered and should thereby reflect the degree of co-operation in the administration of justice which the offender has shown. The learned sentencing Judge was justified in giving substantial weight to the fact that the respondent pleaded guilty at the earliest possible opportunity.
[9] The Queen v Slater (1984) 36 SASR 524 at 525-526 (footnotes omitted).
Prior to the defendant’s committal for trial to the Supreme Court in early 2007, his solicitors wrote to the Director of Public Prosecutions on 25 September 2006 in the following terms:
We wish to confirm our telephone message to you as of 5 pm Friday, 15 September and our Mrs Read’s conversation with you at court at Port Adelaide on 20 September 2006 that our client Partridge will continue to maintain that he did not inflict any injuries upon the deceased nor was he aware of or responsible for any injuries which caused death.
He is however prepared to plead guilty to the charge of criminal neglect upon the basis that the neglect was that he was unaware (because he was under the influence of drugs at the time) that the child was in mortal danger; that the illness was so severe that the child required medical assistance of a critical nature.
This offer was rejected on the basis upon which the offer was made, namely, that the defendant was so under the influence of drugs that he failed to realise that David Mamo was in mortal danger. Ultimately, the defendant pleaded guilty to the alternative charge. However, by that time the matter had been listed for numerous directions hearings and the plea was resolved very close to trial.
It is to be recalled that the defendant was charged with murder and, in the alternative, criminal neglect. It was open to the defendant at his arraignment to plead not guilty to the charge of murder and to plead guilty to the charge of criminal neglect. If that had occurred, it would then have been a matter for the Director to decide whether he was prepared to accept that plea in answer to the charges on the information. The basis upon which the plea was entered may then have become a matter of dispute, but that could have been resolved by a disputed facts hearing. The defendant chose not to plead guilty at that time, and maintained that position until shortly before trial.
The question of reduction for a plea of guilty is a matter for a sentencing Judge’s discretion, and it cannot be said that the Judge in the present proceedings acted upon a wrong principle, or that his discretion miscarried. In the circumstances, it was within the Judge’s discretion to regard a one-year reduction on account of the defendant’s plea as appropriate.
Failure to take into account conditions under which the defendant was required to serve his sentence
The defendant submitted that, while in custody, he had been singled out and subjected to violence, and as a result, sustained a severe facial injury. He claimed to be under threat of further attack and has, thus far, served his sentence in protective custody. It was contended that relatives of David Mamo have connections with “bikie” gangs, and that he has been singled out for retribution. He also claimed that the child’s grandfather is currently serving a sentence of imprisonment. Protective custody deprives the defendant of a number of privileges available to other prisoners.
The Judge referred to the attack upon the defendant and to the fact that the defendant is now in protective custody. The Judge noted that the defendant will find his incarceration more onerous and stressful than the average inmate. The Judge considered it was not appropriate to make a reduction on this basis. The Judge indicated that this was not a case where the illegal acts of another person should influence the sentence he would impose.
There are circumstances in which courts will have regard to the hardship that a prisoner may suffer in serving his or her sentence. A prisoner who must be isolated because he has provided information to the authorities is regarded as being in a special category, and entitled to some reduction of sentence due to the hardship to be endured during imprisonment.[10] Generally, a court will make an allowance if harsher conditions arise from factors outside the prisoner’s control, such as a medical condition. The fact that a prisoner may have difficulty in relating to other prisoners, and that as a consequence arrangements must be made for that prisoner to be kept separate from others, is not, in itself, a basis to reduce what would be an appropriate sentence.[11]
[10] R v Golding & Golding (1980) 24 SASR 161.
[11] R v Liddy (No 2) (2002) 84 SASR 231 at 260-266.
Each case will depend upon its particular circumstances. Although the defendant may suffer some hardship because of the fear he has about his safety, it is a matter for the prison authorities to make the necessary arrangements to ensure that he is protected while in custody. Although it may have been appropriate to make some minor reduction when considering the overall sentence, in the present proceedings this consideration is de minimis. It cannot, in our view, be said that the fact that the Judge made no reduction would justify a reduction of the overall sentence.
The order made in respect of the breach of bond
When imposing sentence, the Judge said that, in respect of the offending, he started with a term of imprisonment of 11 years, which he then reduced to ten years, having regard to the plea of guilty. The Judge then said he would fix a non-parole period, solely for this offending, of six years and six months.
The Judge then addressed the revocation of the suspended sentence. Pursuant to section 58(1)(d) of the Criminal Law (Sentencing) Act 1988, the suspended sentence was revoked. The Judge then said:
This means that you will be required to serve the sentence of 15 months’ imprisonment imposed by the Adelaide Magistrates Court. I also order that you pay the amount of the bond namely $100. Pursuant to s 58(4)(c) of the Sentencing Act the suspended sentence may be served cumulatively upon the sentence imposed for this offence and, in my opinion, that is an appropriate course. Therefore, the total sentence is 11 years and three months imprisonment.
The Judge then fixed a non-parole period of seven years and three months with respect to the total sentence.
The usual practice in cases in which a person is sentenced to imprisonment, and in which he has also admitted a breach of a suspended sentence bond, is that the Court, if it determines to revoke the suspension, will order that sentence to take effect immediately.[12] However, the Court can order that any sentence of imprisonment for the offence with which the prisoner is being sentenced be served concurrently or cumulatively to the sentence which has been brought into effect. A non-parole period is determined having regard to the total period of the head sentence. In effect, the Judge did that, although it appears that he considered a non-parole period for the offending. The Judge appears to have ordered the sentence to take effect and then added the period of the suspended sentence to the head sentence he had imposed. That course was open to the Judge.[13]
[12] Police v Dyke (Unreported, Supreme Court of South Australia, King J, 1 August 1997); R v Healey (Unreported, Supreme Court of South Australia, Prior, Lander and Wicks JJ, 22 September 1998).
The Judge determined the total period of the sentence as 11 years and three months’ imprisonment. He imposed a non-parole period of imprisonment of seven years and three months. In our view, having regard to the defendant’s prior record, the non-parole period was merciful.
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.