CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION
This is an application by the Director of Public Prosecutions (SA) for permission to appeal against sentence on the ground that the sentence is manifestly inadequate.
On 8 February 2022, the respondent was sentenced, by a judge of the District Court, for the offence of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).
The judge sentenced the respondent to a term of imprisonment of two years, six months and 19 days, after reducing the notional term of three years by 15 per cent for the respondent’s guilty plea. The judge fixed a non-parole period of one year, seven months and 28 days. The sentence and non-parole period were backdated to commence on 7 November 2020.
Prior to sentencing the respondent, the judge held a sentencing conference pursuant to s 22 of the Sentencing Act 2017 (SA). In fixing the sentence the judge had regard to, inter alia, discussions had, and materials provided, during the sentencing conference and the respondent’s diagnosed mental health conditions, including schizophrenia and substance abuse disorder.
Held (by the Court), granting permission to appeal and allowing the appeal:
1. The sentence imposed was manifestly inadequate.
2. The sentence imposed by the District Court is set aside.
Held (Livesey P and David JA):
3. The need to protect the community and to deter the respondent and others from similar offending called for a sentence well in excess of that which was imposed in this case.
4. The respondent is resentenced to a term of imprisonment of four years and three months with a non-parole period of two years and three months.
Held (Kourakis CJ):
5. The sentence imposed by the sentencing judge fails to properly reflect the minimum demands of the community for punishment, protection and deterrence. Moreover, the period of non-parole fixed by the sentencing judge deprives the respondent, and the community, of the benefit of sufficient time on parole to stabilise the respondent’s medication and living circumstances. Both considerations combine to require the grant of permission to appeal and an order allowing the appeal.
6. If the object of s 22 of the Sentencing Act 2017 is to be achieved, it is important that appeal courts allow an appropriate margin of deference to a sentencing judge who has had the benefit of direct participation in the process.
7. General deterrence has a reduced part to play in a sentence in circumstances where…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Perry [2022] SASCA 127
Case
[2022] SASCA 127
Decision Date
CaseChat Overview and Summary
This matter concerns a Crown appeal against a sentence imposed on the respondent, Mr Perry, for aggravated robbery. The respondent committed the offence on 7 November 2020, involving the use of a knife and threats made to a taxi driver. The sentencing judge initially imposed a head sentence of three years, which was reduced by 15 per cent for a guilty plea, resulting in a sentence of two years, six months, and 19 days. A non-parole period of one year, seven months, and 28 days was fixed, and the sentence was backdated to the date of custody. The Director of Public Prosecutions for the State of South Australia contended that the sentence was manifestly inadequate, failing to adequately punish the respondent, protect the community, and deter future offending.
The court was required to determine whether the sentence imposed by the judge was manifestly inadequate, particularly in light of the nature of the offending, which involved a vulnerable victim and the use of a weapon. The court also had to consider the principles of sentencing, including punishment, protection of the community, deterrence, and rehabilitation, and how these principles were balanced in the original sentence. Specifically, the court needed to assess whether the sentencing judge had given sufficient weight to the community's need for punishment and protection, and whether the non-parole period adequately allowed for the respondent's reintegration into the community under supervision.
The court reasoned that while the sentencing judge correctly recognised the significance of Mr Perry's psychotic illness and the potential for rehabilitation through medical treatment, the imposed sentence failed to adequately reflect the minimum demands of the community for punishment, protection, and deterrence. The court found the head sentence to be manifestly inadequate and the non-parole period insufficient to allow for adequate supervision of Mr Perry's return to the community. Consequently, permission to appeal was granted, and the original sentence was set aside. The court determined that a head sentence of three years and nine months was the minimum appropriate sentence, which, after a 15 per cent reduction for the guilty plea, resulted in a head sentence of three years, two months, and one week. A non-parole period of one year and 10 months was imposed, allowing for approximately 16 months on parole for supervised reintegration.
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
KOURAKIS CJ
Of course as much as an offender’s mental condition may operate to mitigate a sentence that would otherwise be imposed on an offender with no such condition, the sentence fixed must nonetheless achieve those objects of the sentencing process, deterrence, denunciation and punishment, on which the welfare of community depends. Conclusion In the circumstances of this case, the Judge correctly focussed on the significance of Mr Perry’s psychotic illness and the prospect of rehabilitation through his medical treatment. However, in reducing the sentence to three years, the Judge has failed to properly reflect the minimum demands of the community for punishment, protection and deterrence. Moreover, the non-parole period fixed by the Judge allowed only one year on parole in which to supervise Mr Perry’s return to the community. Both considerations combine to require the grant of permission to appeal and an order allowing the appeal. I would set aside the Judge’s sentence. In this case, no lesser head sentence than three years and nine months could properly be imposed. Applying a reduction of 15 per cent for Mr Perry’s guilty plea, I would impose a head sentence of three years, two months and one week. I would impose a non-parole period calculated to allow time for his reintegration into supported residential and therapeutic environments whilst under close parole supervision. I would fix a non-parole period of one year and 10 months. That would allow Mr Perry, and the community, the benefit of a period of about 16 months on parole, if the Parole Board is minded to order his release soon after the expiration of the non‑parole period.LIVESEY P and DAVID JA:Introduction This is a Crown appeal against sentence. On 8 February 2022, the respondent was sentenced for an aggravated robbery committed on 7 November 2020, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). The sentencing judge commenced with a head sentence of three years which was then reduced by 15 per cent for the respondent’s guilty plea, to two years, six months and 19 days. A non-parole period of one year, seven months and 28 days was fixed. The sentence was backdated to 7 November 2020, when the respondent was taken into custody. The respondent remains in custody though he became eligible for parole during July 2022. The Director of Public Prosecutions for the State of South Australia (the Director) contends that the head sentence is manifestly inadequate: the offending involved the use of a knife and threats made to a taxi driver who was described as a “vulnerable target”. The Director contends that the sentence fails to adequately punish the respondent and fails to adequately address the need to protect the community. These contentions should be accepted. The sentence which was imposed is manifestly inadequate and, for the reasons that follow, permission to appeal should be granted and the appellant resentenced. The circumstances of the offending At about 1.17 am in the early morning of 7 November 2020, a taxi driver was sitting in his taxi on the taxi rank at the corner of Leigh Street and Currie Street in Adelaide. Four people, including the respondent, entered the vehicle. The respondent sat in the front passenger seat. The other three sat in the rear. The respondent asked that they be driven to Mawson Lakes, around half an hour from the City.