R v Rowe

Case [2015] SASCFC 124

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Application)

R v ROWE

[2015] SASCFC 124

Judgment of The Honourable Justice Blue

1 September 2015

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

Applications for extension of time and permission to appeal against sentences.

In April 2004, the applicant was sentenced in the District Court for aggravated serious criminal trespass and assaulting a police officer to imprisonment for one year and eight months cumulative upon pre-existing unexpired head sentences totalling 10 years four months and nine days. A non-parole period of nine years and seven months was fixed.

In June 2005, the applicant was sentenced in the Supreme Court for shooting with intent to do grievous bodily harm to imprisonment for 12 years cumulative upon the pre-existing head sentences.  A non-parole period of 17 years and seven months commencing in April 2004 was fixed.

In May 2014, the applicant sought an extension of time and permission to appeal against those two sentences.

Held:

1.      It is reasonably arguable that the non-parole periods fixed were manifestly excessive.  Extension of time and permission to appeal granted in relation to this proposed ground of appeal (at [141], [146], [152]).

2.      It is reasonably arguable that the applicant’s counsel breached his duty in failing to advise the applicant about advancing on sentencing submissions in the Supreme Court different factual circumstances to those arising on the prosecution evidence.  Applications in relation to this proposed ground of appeal referred to the Full Court (at [158]-[164]).

3. It is reasonably arguable that the applicant’s counsel breached his duty in relation to advising the applicant about challenging certain statements made by the prosecution and by the victim in a victim impact statement which were considered by the Supreme Court Judge. Applications in relation to this proposed ground of appeal referred to the Full Court (at [172, [175], [178]-[179]).

4.      Applications in relation to the proposed ground that the head sentenced imposed by the Supreme Court Judge was manifestly excessive referred to the Full Court (at [182]).

Correctional Services Act 1982 (SA) Part 7; Criminal Law Consolidation Act 1935 (SA) ss 21, 169(1); Statutes Amendment (Correctional Services) Act 1994 (SA) s 4; Statutes Amendment Act (Truth in Sentencing) Act 1994 (SA) s 20; Summary Offences Act 1953 (SA) s 6(1), referred to.
Coulter v The Queen (1988) 164 CLR 350; Police v Warren [2000] SASC 285; R v Fyfe [2004] SASC 391; R v Parenzee [2007] SASC 316; R v Tait [1998] QCA 304, discussed.
Browne v Dunn (1893) 6 R 67; Owen v State of South Australia (1996) 66 SASR 251; R v Basha (1989) 39 A Crim R 337; R v…

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R v Rowe [2015] SASCFC 124
Case
[2015] SASCFC 124
Decision Date

CaseChat Overview and Summary

The applicant, R v Rowe, sought an extension of time and permission to appeal against sentences imposed by the Supreme Court. The grounds for appeal included claims that the applicant was sentenced on an incorrect factual basis due to his lawyers' failures to adduce evidence, challenge prosecution evidence, or make submissions on its implications. Further grounds alleged that the head sentence and non-parole period were manifestly excessive, particularly concerning the principle of totality in relation to prior sentences.

The central legal issues before the court were whether the applicant should be granted an extension of time to appeal and permission to appeal on the stated grounds. Specifically, the court had to determine if the alleged failures of legal representation constituted a sufficient basis for interfering with the sentencing, and whether the sentences imposed were demonstrably excessive, particularly in light of the cumulative effect of previous sentences. The court also considered the applicant's own evidence regarding the factual circumstances of the offences and his communications with his legal representatives.

Blue J reasoned that the grounds alleging sentencing on an incorrect factual basis due to legal representation default warranted referral to the Court of Criminal Appeal. The judge also granted an extension of time and permission to appeal against the non-parole period fixed by the District Court Judge and the Supreme Court Judge, finding it to be manifestly excessive. However, the application for an extension of time and permission to appeal against the head sentence imposed by the Supreme Court Judge, and the non-parole period on other grounds, were referred to the Court of Criminal Appeal for determination.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks an extension of time in which to appeal and permission to appeal against the sentence imposed by the Supreme Court Judge on four grounds:1.The applicant was sentenced on an incorrect factual basis because his lawyers failed to adduce evidence from him on sentencing submissions as to the factual circumstances of the offence.2.The applicant was sentenced on an incorrect factual basis because his lawyers failed to question or challenge parts of the Director’s summary of prosecution evidence and the victim impact statement or make submissions on implications that might be drawn by the Judge from them.3.The head sentence of 12 years was manifestly excessive because the Judge failed to have sufficient regard to the principle of totality in taking into account the combined head sentences imposed in 1988, 1991 and 2004.4.The non-parole period of 17 years and seven months commencing on 30 April 2004 was manifestly excessive.Background The applicant was born in September 1963. Between 1978 and 1984, the applicant was sentenced initially in the Children’s Court and later in the Magistrates Court for burglary and other offences to which he pleaded guilty.[4][4] Exhibit P13 antecedent report 30 April 2003. In September 1984, the applicant was sentenced in this Court for burglary to which he pleaded guilty. He was sentenced to imprisonment for two years and eight months with a non-parole period of 16 months commencing on 28 May 1984.[5] He was released on parole in April 1985.[5] Exhibit P13 antecedent report 30 April 2003. In June 1988, the applicant was sentenced by Jacobs J in this Court for inter alia robbery, burglary and escaping from prison between June 1985 and July 1987 to which he pleaded guilty.[6] He was sentenced to imprisonment for 21 years and six months backdated to commence on 5 July 1987. A non-parole period of 15 years was subsequently[7] fixed to commence on 5 July 1987.[8] Assuming that he was of good behaviour, under the system of remissions for good behaviour in force as at 1991,[9] the sentence was equivalent to imprisonment for 16 years and six months with a non-parole period of 10 years.[10][6] Exhibit P7 sentencing remarks 2 June 1988.[7] On 8 December 1989.[8] Exhibit P8 sentencing remarks 8 December 1989.[9] 15 days remission per calendar month served with extra remissions for abnormal circumstances such as industrial disputes and deductions for bad conduct. See Correctional Services Act 1982 (SA) Part 7 ss 79, 79a and 80. Remissions were applied to both the non-parole period and head sentence: s 79(1)(a).[10] Rounded down to whole months. On 9 December 1990, the applicant escaped from prison and committed robbery and burglary. He resumed serving his existing sentences on 16 January 1991 after being at large for 37 days.[11] [11] The 37 days were not counted as service of his term of imprisonment. In August 1991, the applicant was sentenced by Duggan J in this Court for those new offences, to which he pleaded guilty.[12] He was sentenced to further terms of imprisonment totalling nine years and six months cumulative upon his existing sentences. This resulted in total head sentences of 31 years commencing on 5 July 1987. A non-parole period of 19 years was fixed commencing on 5 July 1987. [12] Exhibit D9 sentencing remarks 30 August 1991.

Evidence

Evidence Before The Court

On 2 May 2014, the applicant filed an application for permission to appeal against the April 2004 and June 2005 sentences.The evidence The applicant, who was self represented, gave evidence in support of his applications. Mr Noblett and Mr Ibbotson gave evidence under subpoena issued by the Director. The applicant was then cross-examined by the Director. Both parties tendered various documents. The applicant gave evidence about the events on and leading up to 19 June 2001. He said that about three weeks beforehand W drove a four wheel drive vehicle into V’s workshop to be re-sprayed. The applicant drove W’s vehicle into the workshop at the same time and W drove it out of the workshop with the applicant as passenger. The applicant and V, who had not previously met, greeted each other but did not engage in conversation. On 19 June 2001, the applicant and W returned to V’s workshop to retrieve the four wheel drive vehicle. W drove away. V, who was driving a forklift, saw the applicant, stopped the forklift, picked up an iron bar from the forklift’s skip and approached the applicant. The applicant tripped and fell. V brought the steel bar down towards the applicant’s legs. The applicant reached into his pocket for the Margolin pistol and fired, the bullet passing through V’s arm into his leg. A second bullet passed into V’s other leg, this discharge being due to the applicant’s elbow hitting the ground.[54][54] Appeal Transcript 31/7-34/13. The applicant gave evidence that on the morning of 6 July 2001 he had a discussion off the record with Detectives Merrett and Yeomans. He told them about the events on 19 June 2001 as set out in the previous paragraph except that he omitted any reference to W. The detectives told the applicant that V had not been really cooperative and they did not believe that he would give evidence against the applicant or that the attempted murder charge would ultimately proceed. It was agreed that the applicant be formally interviewed and make admissions to some less serious offences but would make no comment to questions about the shooting on 19 June 2001.[55] [55] Appeal Transcript 274/12-279/24; 284/1-8. The applicant gave evidence that he did not do the Black Forest shooting of the blue Commodore on 16 June 2001 but admitted to doing it to Detectives Merrett and Yeomans on 6 July 2001 to protect his associates and in the belief it was not a serious charge. He gave evidence that he did not have the Margolin pistol until just before he entered V’s premises on 19 June 2001 and did not have it again until 30 June 2001 when it was brought by W into the motel room. The applicant gave evidence that during one of his early meetings with Mr Noblett he told Mr Noblett that on 6 July 2001 he had an off the record discussion with the detectives in which various offences were discussed and it was agreed that during a formal record of interview he would make admissions to lesser offences but not to shooting V on 19 June 2001. He told Mr Noblett that what occurred on 19 June 2001 was not attempted murder. He told Mr Noblett about V’s background and that he did not believe that V would give evidence against him. He believed that he could not say outright to Mr Noblett that he had shot V but he hinted this without actually saying it.[56] He said that he may have referred to self defence but could not say that he did.[57][56] Appeal Transcript 273/13-274/4; 282/1-13.[57] Appeal Transcript 273/35-38.

Decision

Reasons for decision

BLUE J
Given my conclusion that I should refer the questions of permission to appeal and extension of time in respect of the two grounds contending that an incorrect factual basis was before the sentencing Judge as a result of default by the applicant’s lawyers, it is appropriate to refer also those questions in respect of this ground to the Court of Criminal Appeal.Conclusion I grant an extension of time and permission to appeal against the non-parole period fixed by the District Court Judge on the ground that it was manifestly excessive. I grant an extension of time and permission to appeal against the non-parole period fixed by the Supreme Court Judge on the ground that it was manifestly excessive. I refer to the Court of Criminal Appeal the application for an extension of time and for permission to appeal against the head sentence imposed and the non-parole period fixed by the Supreme Court Judge on the other grounds.

Ratio Decidendi

Legal Principle Established

Established by: BLUE J

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