R v Richardson

Case [2010] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v RICHARDSON

[2010] SASC 88

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)

7 April 2010

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - OFFENCES COMMITTED IN DIFFERENT JURISDICTIONS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - GENERALLY

Appeal against sentence - defendant and appellant convicted for dishonesty offences against both the laws of South Australia and the laws of the Commonwealth of Australia - Judge fixed sentence of imprisonment of four years and six months with respect to State offending to be served cumulatively on a two year sentence being served by defendant leading to total term of imprisonment of six years and six months for State offending - existing non-parole period of 16 months in respect of earlier sentence extended to four years - Judge fixed sentence of imprisonment of three years and four months with respect to Commonwealth offending - non-parole period of 18 months fixed - partial concurrency of State and Commonwealth sentence pursuant to section 19 of the Crimes Act 1914 (Cth) - effective head sentence a period of seven years and four months - total non-parole period of five years and six months - whether overall sentence excessive - whether Judge erred in application of principle of totality and in declining to make any reduction to overall sentence - whether Judge's approach to application of principle of totality flawed - whether total non-parole period as against effective head sentence manifestly excessive.

Held (Nyland & Gray JJ): appeal allowed - Judge's failure to identify real or effective head sentence when applying the principle of totality and considering whether non-parole period was crushing, was flawed - total non-parole period of five years and six months as against effective head sentence of seven years and four months was manifestly excessive - that non-parole period represented 75 per cent of effective head sentence - non-parole period of 60 per cent of effective head sentence appropriate in circumstances - non-parole periods fixed by Judge set aside - non-parole period of four years and six months fixed with respect to total State sentence of six years and six months - non-parole period of two months fixed with respect to Commonwealth sentence of three years and four months - Commonwealth sentence and non-parole period to commence at expiration of State non-parole period.

(Vanstone J): appeal dismissed - no error of approach to sentencing with respect to accumulation or totality has been identified - sentence not manifestly excessive - manner in which sentencing Judge constructed sentence beneficial to defendant and merciful in circumstances.

Criminal Law Consolidation Act 1935 (SA) s 134, s 139 and s 140; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 31 and s 32; Crimes Act 1914 (Cth) s 19, s 19(3), s 19AB(1)(d), s 19AJ and s 21B; Summary Offences Act 1953 (SA)…

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R v Richardson [2010] SASC 88
Case
[2010] SASC 88
Decision Date

CaseChat Overview and Summary

In the case of R v Richardson, the appellant, John Douglas Richardson, appealed against the sentence imposed by the District Court for his extensive dishonesty offences, which spanned from March 2002 to August 2008. The court was required to determine whether the overall sentence, including the non-parole periods, was excessive and whether the judge had erred in applying the principle of totality and in declining to make any reduction to the overall sentence. The primary focus of the appeal was on whether the judge's approach to the principle of totality was flawed and if the total non-parole period was manifestly excessive compared to the effective head sentence.

The court found that while the effective head sentence of seven years and four months was within the sentencing discretion of the judge and was appropriate, the non-parole period of five years and six months was excessive. The court inferred that the judge intended to impose a non-parole period of no more than 60 per cent of the head sentence, but instead fixed a non-parole period representing 75 per cent of the effective head sentence. The court concluded that a non-parole period of about 60 per cent of the effective head sentence was appropriate, aligning with the underlying reasoning and findings of the judge.

The court allowed the appeal and set aside the non-parole periods fixed by the judge. It imposed a non-parole period of four years and six months for the total state sentence of six years and six months, and a non-parole period of two months for the Commonwealth sentence. This resulted in a total term of imprisonment of seven years and 10 months, with a total non-parole period of four years and eight months, commencing from 9 December 2008.

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 offending conduct of the defendant was serious. He engaged in extensive dishonesty over a period of more than six years leading to a substantial financial betterment. He received money or property to a total value of between $300,000.00 and $400,000.00. His offending called for a substantial term of imprisonment. In our view, the effective head sentence of seven years and nine months, after recognising the statutory concurrency, was within the sentencing discretion of the Judge and was an appropriate head sentence. However, the non-parole period totalling five years and six months was excessive. We infer that the Judge intended to impose a non‑parole period of no more than 60 per cent of the head sentence – not 75 per cent. In our view a non-parole period of about 60 per cent of the effective head sentence is appropriate. The underlying findings, approach and reasoning of the Judge are therefore reflected in the approach taken by this Court. Conclusion We would allow the appeal. We would set aside the non‑parole periods fixed by the Judge. We would fix a non-parole period of four years and six months with respect to the total State sentence of six years and six months. We would fix a non-parole period of two months with respect to the Commonwealth sentence. This results in a total term of imprisonment to be served of seven years and 10 months for all the offending with a total non-parole period of four years and eight months, to commence from 9 December 2008. VANSTONE J: This appeal raises questions about the application of the totality principle where sentences for both state and federal offences are imposed. John Douglas Richardson, also known as John Mallon, fell to be sentenced in the District Court upon his pleas of guilty to some 48 state and federal offences. The offending occurred over the period March 2002 to August 2008. It included some offences which ordinarily would have been dealt with in the Magistrates Court, but which, at the prisoner’s request, were brought before the District Court. At the time of his sentence, the appellant was already serving a sentence imposed by a different judge of the District Court on 9 December 2008. The sentences now under appeal were ordered to be served cumulatively upon that sentence. In sentencing the judge divided the offences before him into several different groups. Where terms of imprisonment were imposed, the judge utilised s 18A Criminal Law (Sentencing) Act 1988. Between January and May 2004 the appellant committed theft of a motor vehicle, three offences of falsifying documents relevant to stamp duty and two offences of deception. For this group of offences he was sentenced to 15 months imprisonment. In May 2004 he committed three offences of permitting another to drive an unregistered and uninsured vehicle. No penalty was imposed. In August 2006 he committed three offences of deception, involving presenting false bank cheques in order to obtain possession of motor cycles. The amounts involved totalled $21,500. He committed a further offence of deception involving obtaining a motor vehicle valued at $8,000, together with $350 in cash, by passing a false cheque, and unlawful possession of a motor vehicle. The maximum penalty for deception is 10 years imprisonment. For these offences one penalty of 27 months imprisonment was imposed.

Ratio Decidendi

Legal Principle Established

The proper application of the totality principle was reviewed by this Court in Place,[21] where in the course of a discussion of the authorities, the approach of the High Court in Postiglione was applied and the following observation was made:[22]In an earlier judgment, King CJ spoke of the requirement that “at the end of day” a sentencing judge “stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose” (R v Creed (1985) 37 SASR 566 at 568). The view that the question of totality is the final step in the sentencing process was confirmed by Doyle CJ and Olsson J in R v Major (1998) 70 SASR 488 at 490 and 497.[21] R v Place (2002) 81 SASR 395.[22] R v Place (2002) 81 SASR 395 at 426 (Doyle CJ, Prior, Lander and Martin JJ).Consideration of the Appeal When imposing the sentence for the State offences and extending the existing non‑parole period, the Judge fixed a non‑parole period of 48 months against a total head sentence of 78 months. This represented a proportion of about 60 per cent. When fixing a non‑parole period in respect of the Commonwealth offences, the Judge fixed a period of 18 months against a head sentence of 40 months. This represents a proportion of 45 per cent. When considering the principle of totality in its application, the Judge considered a non‑parole period of 66 months against a head sentence of 118 months. The Judge expressly considered the application of the totality principle and the question of whether the proposed sentence would be crushing. In that respect the Judge remarked:…I return to the question of totality. The total term of imprisonment and the total non-parole period that I have arrived at to this point for all offences are nine years and 10 months and five years and six months respectively, commencing from 9 December 2008.I must review this to ensure that the sentence ultimately imposed fairly reflects the overall criminality of your course of conduct between 2002 and 2008 but is not to be unduly crushing. Having done this, I see no reason to adjust the overall sentence I have imposed. It is apparent that in his final determination, the Judge considered that a non-parole period of about 60 per cent of the total head sentence was appropriate. This was the proportion that the Judge fixed when determining the sentence for State offending. It may be inferred that the Judge fixed a non-parole period for the Commonwealth offending at 18 months, that is, a proportion of 45 per cent of the Commonwealth head sentence, with the intent of fixing an overall non-parole period of 60 per cent of the total head sentence. Having regard to the defendant’s serious offending and his antecedents, the fixing of a non-parole period at about 60 per cent of the head sentence was within an appropriate range. In undertaking his consideration of totality and arriving at the total head sentence of nine years and 10 months, the Judge treated the head sentences under State and Commonwealth law as though they were cumulative. This was incorrect. There was a degree of concurrency. The head sentence for the Commonwealth offending commenced on the expiration of the non-parole period fixed in respect of the State offending. Accordingly there was a concurrency of two years and six months. As a consequence, the non-parole period of five years and six months was to be assessed against the effective head sentence of seven years and four months. The non‑parole period of five years and six months represented 75 per cent of this effective head sentence. Accordingly, it is evident that as a proportion, the non-parole period was substantially increased.