R v Peet

Case [2018] SASCFC 91

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PEET

[2018] SASCFC 91

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Doyle and The Honourable Justice Hinton)

5 September 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

Application by the Director of Public Prosecutions for permission to appeal against sentence.

The respondent pleaded guilty to the murder of Ms Wilson-Rigney and her two children, ages five and six, on 30 May 2016 at their home in Hillier.

The circumstances of the offending were that early on the morning of 30 May 2016 following an argument with Ms Wilson-Rigney, in which she slapped and kicked and hit the respondent with a vacuum cleaner pole, the respondent struck her with a crow bar a minimum of six times. The respondent dragged her body to the laundry where he placed a cable tie around her neck and tightened it. The combined effect of the blows and the compression of her neck caused her death.

Not long after this occurred the children woke. The respondent made breakfast for them. He then went outside and smoked a cigarette before returning inside. There was a knock at the door. The respondent put the children in their rooms and told them to be quiet. He did not answer the door and the people knocking went away.

At some point, and possibly whilst the people were still at the front door, the respondent went back to each child. The respondent restrained the six year old using cable ties then placed a sock in her mouth and fixed it in position with packing tape. He placed a cable tie around her neck and tightened it.  Her death was caused by the combined effect of suffocation and asphyxiation.

The respondent also restrained the five year old with cable ties and then placed a cable tie around his neck resulting in his death. When police later found the five year old there was a ring of packing tape around his neck but not covering his mouth. His tongue was bruised suggesting that prior to death he too may have had something placed in his mouth obstructing his airway.

For each murder the respondent was sentenced to life imprisonment as required by s 11 of the Criminal Law Consolidation Act 1935 (SA). Under s 32 of the Criminal Law (Sentencing) Act 1988 (SA) the sentencing Judge fixed a non-parole period of 30 years backdated to commence on the day the respondent was taken into custody being 30 May 2016. The sentencing Judge accepted that the respondent was experiencing a degree of dissociation when he killed the children.

On appeal the Director of Public Prosecutions contended that the 30 year non-parole period was manifestly inadequate. The inadequacy was so great, having regard to the gravity of the offending in particular, that it provided strong reason for the…

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R v Peet [2018] SASCFC 91
Case
[2018] SASCFC 91
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CaseChat Overview and Summary

This case concerned a Crown appeal against a sentence imposed on the respondent, who had been convicted of three counts of murder and sentenced to life imprisonment for each. The appeal was heard by Kourakis CJ, Doyle and Hinton JJ. The central dispute revolved around the non-parole period fixed by the sentencing judge.

The legal issues before the court were whether the sentencing judge had erred in fixing the non-parole period and, if so, what non-parole period should be substituted. This required the court to consider the application of the totality principle to the setting of a non-parole period for multiple life sentences for murder, and the statutory provisions governing mandatory minimum non-parole periods for murder in South Australia, specifically sections 32(5)(ab) and 32A of the Criminal Law (Sentencing) Act 1988 (SA) (and their equivalents in the Sentencing Act 2017 (SA)).

The court acknowledged that the respondent conceded the sentencing judge had erred. The court affirmed that a non-parole period reflects the minimum proportion of a head sentence that justice requires an offender to serve, a principle modified by statutory provisions for life sentences for murder. These provisions establish a mandatory minimum non-parole period of 20 years, but allow for longer periods if warranted by objective or subjective factors, or shorter periods if special reasons exist. The court considered the totality principle applicable and, after reviewing the circumstances, determined that a further reduction in the non-parole period was not warranted, despite the length of the period and its impact on the respondent.

The court granted permission to appeal, allowed the appeal, set aside the original non-parole period, and substituted a new non-parole period of 36 years, commencing from 30 May 2016. This decision reflected the gravity of the offences, involving the murder of three people, including two young children.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The totality principle is applicable to the setting of a non-parole period in relation to a life sentence for murder. Standing back we do not think any further reduction warranted. The non-parole period we would fix is lengthy and accounts for most of the remainder of the respondent’s life. It will bear heavily upon him. However, it leaves him the prospect of some time free in the community in the future. True that is a way off, but three people, including two very young children, were murdered. In the circumstances we do not consider it appropriate to revise the non-parole period any further.Conclusion We would grant permission to appeal and allow the appeal. We would set aside the non-parole period fixed by the sentencing Judge and substitute in its place a non-parole period of 36 years. That non-parole period is to commence on 30 May 2016.

Ratio Decidendi

Legal Principle Established

As mentioned, the respondent conceded that the sentencing Judge erred in fixing the non-parole period that he did. The respondent accepted that he should be resentenced for the offending and relied on the submissions made on his behalf before the sentencing Judge. Counsel submitted that the respondent’s position was consistent with the respondent’s profound sense of remorse for his actions. He added that the task of resentencing should not be distorted by “unreal hypotheticals” and consideration of very different cases.Consideration The task confronting the sentencing Judge was to set one non-parole period in relation to an offender who had been sentenced to life in prison for each of three murders. It was not contended that this was a case where a non-parole period should not be set. It is settled that a non-parole period reflects the minimum proportion of the head sentence that a judge determines justice requires the offender to serve having regard to all the circumstances of his or her offending.[11] This approach is, however, modified by s 32(5)(ab) and 32A of the Criminal Law (Sentencing) Act 1988 (SA) in relation to a person sentenced to life imprisonment for the offence of murder.[12] Section 32(5)(ab) provides:If fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years;[11] Power v The Queen (1974) 131 CLR 623 at 629 (Barwick CJ, Menzies, Stephen and Mason JJ); Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525 at 531 (Mason CJ and McHugh J), 538 (Dawson, Toohey and Gaudron JJ); Hili v The Queen (2010) 242 CLR 520 at [40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); The Queen v Shrestha (1991) 173 CLR 48 at 60-61 (Brennan and McHugh JJ); Knight v Victoria (2017) 91 ALJR 824 at [8] (The Court).[12] The same applies in relation to the sentencing of a person convicted of murder under the Sentencing Act2017 (SA); see ss 47(5)(b), 48. And s 32A provides:(1) If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non-parole period applies.(2) In fixing a non-parole period in respect of an offence for which a mandatory minimum non-parole period is prescribed, the court may –(a)if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or(b)if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.(3) In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:(a)the offence was committed in circumstances in which the victim’s conduct or condition substantially mitigated the offender’s conduct;(b)if the offender pleaded guilty to the charge of the offence – that fact and the circumstances surrounding the plea;(c)the degree to which the offender has co-operated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co-operation.(4) This section applies whether a mandatory minimum non-parole period is prescribed under this Act or some other Act.