R v Pennington

Case [2015] SASCFC 98

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PENNINGTON

[2015] SASCFC 98

Judgment of The Court of Criminal Appeal

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

30 July 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM OR SERIOUS INJURY - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - CONTRITION

Appeal against sentence.  The appellant was convicted of the offence of recklessly causing serious harm aggravated by the fact that he stabbed his victim with a knife.  The appellant had been charged with the offence of aggravated causing serious harm with intent to cause serious harm but was convicted of the alternative offence of recklessly causing serious harm.  The sentencing Judge imposed a sentence of eight years with a five year non-parole period.  The appellant has a history of serious criminal offending.  He has spent time in jail for offences committed in Western Australia.  The appellant is a traditional Aboriginal man who grew up in missions north of Kalgoorlie.  He has a family history of alcohol abuse and has an alcohol addiction himself.  Alcohol abuse is common in the community in which he lives. 

Whether the Judge sentenced the offence as an intentional offence rather than an offence of recklessness.  Whether the Judge sentenced the appellant in respect of uncharged criminal conduct.  Whether the sentence was manifestly excessive. Whether the sentencing Judge had sufficient regard to the appellant’s deprived background of acute social disadvantage and intergenerational alcohol abuse and violence.  Whether the sentencing Judge erred in failing to have regard to the appellant’s expressions of remorse.  Whether the sentencing Judge erred by considering whether the appellant had participated in intervention programs, contrary to section 10(3)(c) of the Criminal Law (Sentencing Act) 1988 (SA).

Held per Gray and Sulan JJ (allowing the appeal):

1.       The Judge was in error by sentencing on a factual background that treated the offence as an intentional offence rather than an offence of recklessness. 

2.       The Judge was in error in sentencing the appellant in relation to disposal of the weapon, which was uncharged criminal conduct. 

3.       The Judge erred in failing to have regard to the remorse exhibited by the appellant. 

4.       The sentence was manifestly excessive.  The Judge erred in failing to have regard to the particular disadvantages faced by the appellant as a consequence of his Aboriginality. 

5.       The Judge did not consider the appellant’s access to, or involvement in, treatment programs in a manner…

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R v Pennington [2015] SASCFC 98
Case
[2015] SASCFC 98
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, who had been convicted of aggravated recklessly causing serious harm after stabbing his partner with a knife, resulting in a life-threatening injury. The sentencing Judge imposed a term of imprisonment of eight years with a non-parole period of five years. The appellant sought leave to appeal against this sentence, submitting that both the head sentence and the non-parole period were manifestly excessive. The appeal was heard by Gray, Sulan, and Lovell JJ.

The central legal issues before the Full Court were whether the sentencing Judge had erred in principle or imposed a sentence that was manifestly excessive or inadequate, particularly in light of the appellant's Aboriginality and the circumstances of the offending. The Court was required to consider the appropriate weight to be given to the appellant's background, including his upbringing on a mission, the death of his mother due to alcohol addiction, and his father's alcoholism and violent behaviour. The Court also had to consider the appellant's cultural responsibilities and the impact of his imprisonment on his ability to fulfil them.

The Court allowed the appeal, finding that the original sentence was excessive. In their reasoning, Gray, Sulan, and Lovell JJ emphasised the need for the criminal justice system to accommodate the special needs of Aboriginal offenders, referencing the recommendations of the Royal Commission into Aboriginal Deaths in Custody. They noted that the appellant required substantial assistance and supervision upon release, particularly concerning his alcohol abuse and rehabilitation into his community, which might necessitate medical assistance. The Court resentenced the appellant to a term of imprisonment of five years with a non-parole period of three years, indicating that the provision of appropriate assistance, as outlined in the Royal Commission's recommendations, would be crucial to reducing the appellant's prospects of reoffending.

Orders

Orders of the court

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Background

Background to the litigation

After the verdict the sentencing Judge discussed with counsel the timing of submissions on penalty. Counsel for the appellant, Ms Burgess, stated that she would not be getting any reports. She submitted that the appellant had already spent 14 months in custody and that she would be making a submission that he should be now released on parole. The Judge indicated that, given the serious nature of the charge, there was a possibility that a materially longer sentence would be imposed. The antecedent report, which revealed prior offending, was tendered. The Judge indicated that he wanted further details relating to the previous convictions. He said that he would be prepared to order a pre-sentence report if requested. The matter was adjourned to 1 December 2014.On 1 December 2014 there was further discussion about a time for submissions. Counsel submitted that the appellant would like to know “his bottom line as soon as possible”. Counsel indicated that her preference was for the appellant to be assessed for a report whilst in custody. She indicated that funding had been requested and that the issue was “how quickly it could be facilitated”. The Judge indicated that the offending fell into the “upper end of the range” and that there was a risk that the accused could be in prison for “a considerably longer period than he’s been in”. The Judge gave that indication to counsel to assist in determining whether a report should be obtained. The matter was adjourned for a short time for counsel to obtain instructions. Counsel subsequently told the Judge that “he understands that I would prefer to obtain a report but he’s made it reasonably clear that he would prefer to know himself the bottom line as soon as possible. He asked that the sentencing submissions be listed in two weeks time”. The Judge agreed to order a pre-sentence report.Submissions and background of the appellant Submissions were made on 16 December 2014. The Judge had received the pre-sentence report he had ordered. In addition, he had material from various Western Australian courts regarding the prior convictions of the appellant in that State. The material from Western Australia was extensive and provided information about the appellant’s background, details of his previous offending and included sentencing remarks. The material included pre-sentence reports. Counsel for the appellant submitted that, having read the material from Western Australia and the current pre-sentence report, she did not maintain her earlier submission that “time in custody might be sufficient”. The appellant was born and grew up on a mission in Western Australia known as the Cundeelee Mission near Kalgoorlie. He is one of five children born to his elderly traditional father and young wife. The appellant is currently 35 years of age and his mother died when he was aged 25 as a result of her addiction to alcohol. His father was described as a violent alcoholic and the appellant suffered as a result of his father’s behaviour and alcoholism. The appellant is a traditional Aboriginal man and has “gone through business”. When not in custody the appellant performs important roles within his own culture. As a result of his imprisonment over the years he has missed important ceremonies.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY AND SULAN JJ
We consider that the defendant when released from custody is in need of substantial assistance and supervision. His abuse of alcohol should be addressed. His rehabilitation into the relevant community needs to be handled with care. In all probability, he may need medical assistance as part of his rehabilitation. The need for the criminal justice system to accommodate the special needs of criminal offenders has been addressed in the Royal Commission into Aboriginal Deaths in Custody. A number of those recommendations are relevant to the assistance that should be made available to the defendant while in custody and upon his release. These recommendations have been accepted in this jurisdiction as well as others. It is to be hoped that those recommendations can be followed in the case of this defendant. Ultimately these are matters for the Department for Correctional Services and the Parole Board, however, if the type of assistance spoken of in the Royal Commission report is not provided then the prospects of the defendant not reoffending will be significantly reduced.Conclusion In so far as the defendant has sought permission to appeal we would grant that permission. We would allow the appeal and set aside the sentence imposed by the District Court. We would resentence the defendant to a term of imprisonment of five years. We would fix a non-parole period of three years. On 24 November 2014, at Port Augusta, a jury convicted the appellant of one count of aggravated recklessly causing serious harm, the offending occurring on 2 August 2012. The circumstance of aggravation proved was that an offensive weapon, namely a knife, was used during the offence. The appellant was sentenced to a term of imprisonment of eight years with a non-parole period of five years. The appellant submitted on the appeal that the head sentence and non-parole period were manifestly excessive.Background to the offending The jury found that the appellant had stabbed his partner in the back as she sat on the couch in the lounge room of a friend’s house. The knife penetrated the victim’s chest cavity and punctured her lung leaving her with a life-threatening injury. The appellant did not remain in the house to render assistance to his injured partner. The evidence disclosed that a number of other people in the house also left without rendering assistance to the victim and it was left to a 19-year-old woman to assist. The victim was taken to a nearby medical clinic and then airlifted to Adelaide where she received appropriate treatment. Prior to the police attending someone entered the house and removed a number of knives from the kitchen drawer. The Judge for the purpose of sentencing found that the appellant had obtained the knife used in the offence from the kitchen drawer. He further found that it was the appellant who had returned to the scene and removed the knives from the kitchen drawer in a “clumsy” attempt to cover up the crime.Background to submissions After the verdict the sentencing Judge discussed with counsel the timing of submissions on penalty. Counsel for the appellant, Ms Burgess, stated that she would not be getting any reports. She submitted that the appellant had already spent 14 months in custody and that she would be making a submission that he should be now released on parole. The Judge indicated that, given the serious nature of the charge, there was a possibility that a materially longer sentence would be imposed. The antecedent report, which revealed prior offending, was tendered. The Judge indicated that he wanted further details relating to the previous convictions. He said that he would be prepared to order a pre-sentence report if requested. The matter was adjourned to 1 December 2014.On 1 December 2014 there was further discussion about a time for submissions. Counsel submitted that the appellant would like to know “his bottom line as soon as possible”. Counsel indicated that her preference was for the appellant to be assessed for a report whilst in custody. She indicated that funding had been requested and that the issue was “how quickly it could be facilitated”. The Judge indicated that the offending fell into the “upper end of the range” and that there was a risk that the accused could be in prison for “a considerably longer period than he’s been in”. The Judge gave that indication to counsel to assist in determining whether a report should be obtained. The matter was adjourned for a short time for counsel to obtain instructions. Counsel subsequently told the Judge that “he understands that I would prefer to obtain a report but he’s made it reasonably clear that he would prefer to know himself the bottom line as soon as possible. He asked that the sentencing submissions be listed in two weeks time”. The Judge agreed to order a pre-sentence report.Submissions and background of the appellant

Ratio Decidendi

Legal Principle Established

Established by: GRAY AND SULAN JJ

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