R v Roberts

[2018] SASCFC 122

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ROBERTS

[2018] SASCFC 122

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Auxiliary Justice Chivell)

20 November 2018

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY

Appeal against a sentence imposed in the District Court following conviction on one count of aggravated assault causing harm.  The offence was aggravated by the use of a weapon, being the leg of a wooden chair. 

The appellant appeals on the ground that the sentence was manifestly excessive and that the sentencing Judge incorrectly sentenced the appellant on the basis that he was a serious repeat offender for the purpose of s 54 of the Sentencing Act 2017 (SA).

Held, per Kourakis CJ (Bampton J and Chivell AJ agreeing), allowing the appeal against sentence:

1.  The sentencing Judge erred in finding that the appellant was a serious repeat offender.

2.  The misdescription of the appellant as a serious repeat offender, in itself, did not cause any error other than with respect to the non-parole period.  The judge was otherwise correctly appraised and made no mistake in his consideration of the appellant's criminal antecedents.

3.  The head sentence was not manifestly excessive.

4.  The appeal is allowed only with respect to the fixing of the non-parole period.

5.  The head sentence of two years is affirmed.

6.  The non-parole period imposed in the District Court is set aside.  A new non-parole period of 12 months is fixed. That is to commence on 24 November 2017.

Sentencing Act 2017 (SA) s 47, s 54; Criminal Law Consolidation Act 1935 (SA) s 54, referred to.

R v ROBERTS
[2018] SASCFC 122

Court of Criminal Appeal:            Kourakis CJ, Bampton J and Chivell AJ

1. KOURAKIS CJ (ex tempore):       This is an appeal against a sentence imposed in the District Court on the appellant's conviction on one count of aggravated assault causing harm.  The offence was aggravated by the use of a weapon, namely a wooden chair or the chair leg at least.  I will come to the appellant's antecedents generally in a moment but I mention now that he has a significant criminal offending history, most relevantly in April 2011 he was sentenced to multiple offences including an assault aggravated by the use of an offensive weapon and an assault police charges to a total head sentence of 23 months imprisonment with a non-parole period of 10 months.  Then on 19 July 2016, sentenced to six months imprisonment for an offence of assault.

2. The Judge correctly noted the maximum penalty provided for the offence was five years and that the appellant was entitled to a discount of 20 percent by reason of his plea of guilty.

3. I turn to the circumstances of the offence. The appellant and the victim of the offence both lived in a boarding house.  During the day, they argued over the use or misuse of a washing machine.  At about 2.40 am the appellant went into the victim's bedroom.  The victim was awoken by loud banging.  A confrontation ensued during which the appellant struck the victim on his head with a wooden chair.

4. The victim was able to push the appellant out of the room eventually, he was there restrained.  The victim was taken to the Royal Adelaide Hospital where the laceration to his head was sutured.  Some 16 staples and sutures were needed.

5. The victim has been left with substantial anxiety since the attack.  He sleeps with a knife under his bed and suffers insomnia.  He, as a result of this assault and the medical treatment he required, lost an opportunity to take up employment.  That has caused him considerable anxiety and embarrassment.

6. The Judge accepted the submission of counsel for the Director, which was not corrected by the appellant’s counsel, that the appellant was to be sentenced as a serious repeat offender by reason of the convictions to which I have just referred. The Judge accordingly imposed a non-parole period of four-fifths of the length of the head sentence, but expressly recorded that he would impose only a proportionate sentence, not relying on the power given to him by s 54 of the Sentencing Act 2017 (SA) to impose something longer than that. The Judge imposed a sentence of two years, reduced from a starting point of 30 months on account of the appellant's plea of guilty. The Judge erroneously thinking he was bound by s 54 of the Sentencing Act, imposed a non-parole period of 20 months.

7. The appellant was 45 years of age at the time of offending.  He was adopted as a child; he was frequently assaulted by his adoptive father.  He found school difficult, often falling into arguments and fights with his school mates.  He left school in Year 11.  He has sometimes lived in boarding houses and sometimes in accommodation organised by service providers.  He has a long history of alcohol and drug dependency.  Perhaps most relevantly to this offending, he has abused methylamphetamine and benzodiazepines.  The appellant has been diagnosed with both anxiety and depression and a borderline personality disorder.

8. The Director accepts that the fixing of the non-parole period, at least, was vitiated by error. Accordingly, at the very least, it falls for this court to fix another non-parole period. 

9. It does not necessarily follow that the fixing of the head sentence is affected by that error.  In sentencing the appellant, the Judge exercised effectively two discretions.  The first was to fix a head sentence, applying the Sentencing Act and common law principles to the power conferred by the penalty provision of s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). That was one discretion which I will call the head sentence discretion.

10. The Judge then exercised the statutory discretion conferred by s 47 of the Sentencing Act.  It is that discretion which miscarried.  I would hold that that error did not vitiate the exercise of the head sentence discretion because the Judge expressly declined to fix anything greater than a proportionate sentence.  In no other way did the Judge's error taint or affect the process of fixing the head sentence.

11. The misdescription of the appellant as a serious repeat offender, in itself, did not cause any error other than with respect to the non-parole period.  The Judge was otherwise correctly appraised and made no mistake in his consideration of the appellant's criminal antecedents.

12. If I am wrong about that characterisation I would, in any event, hold that the head sentence was not manifestly excessive. Ms Demertzis emphasised that the starting point of two years six months is the halfway point of the maximum penalty provided for. Ms Demertzis submitted that that starting point did not allow sufficient room for more serious examples of this offending. However, it must be remembered that s 20 has its place in a series of provisions from ss 20‑24 of the CLCA. Much of the more serious offending against s 20(4) which might be contemplated would fall within those other statutory provisions and be subject to a higher maximum penalty in any event.

13. Perhaps more importantly, the appellant's previous convictions and the sentences imposed emphasise the need now, in respect of this further offending, to impose a sentence which has a strong personal deterrent effect.  Sentences of imprisonment, including an accumulated sentence of 23 months, have not sufficiently deterred the appellant.  Of course, it goes without saying the appellant is not to be sentenced again for those offences; they are relevant only in an assessment of what is necessary for the purposes of personal deterrence in sentencing for this offence.

14. I would affirm the head sentence of two years. I come now to the fixing of the non-parole period. Mr Roberts, the appellant, would benefit from at least some period of time under supervision if he chooses to take parole to help him integrate back into the community.  The limited time which can be allowed on parole will not be sufficient to fully effect any rehabilitation.  So much can be acknowledged.  However, the non-parole should allow some opportunity, if Mr Roberts' chooses to take it, for re-establishment back into the community. For that reason, I would fix a non-parole period of 12 months.

15. Accordingly, the orders I would make are:

    1Appeal allowed only with respect to the fixing of the non-parole period.

    2The head sentence of two years affirmed.

    3I would set aside the non-parole period fixed by the Judge and fix instead a non-parole period of 12 months to commence on 24 November 2017.

16. BAMPTON J:        I agree with the reasons of the Chief Justice and the orders he proposes.

17. CHIVELL AJ:        I agree that the appeal should be allowed for the limited purpose outlined by the Chief Justice and with his reasons.