R v Saunders

Case [2017] SASCFC 86

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SAUNDERS

[2017] SASCFC 86

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Hinton)

27 July 2017

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

Appeal against sentence for one count of property damage, one count of breaching bail and one count of contravening a term of an intervention order. 

The judge imposed a single sentence of imprisonment for eight months and 22 days fixed from a notional starting point of 18 months after a discount of 40 per cent for the pleas of guilty and a further reduction for time spent in custody.  In November 2014 the appellant was sentenced to two months imprisonment for the offence of threatening life, which was suspended upon him entering into a bond for three years.  By this offending the appellant breached that bond.  The sentencing judge estreated the suspended sentence and ordered that it be served cumulative upon the sentence of eight months and 22 days.  This resulted in a total sentence of 10 months and 22 days.

The appellant argued that in all the circumstances the sentence is manifestly excessive.  No complaint was made about the sentencing judge estreating the bond and invoking the suspended sentence of two months imprisonment.

Held: Appeal dismissed (at [29], [30] and [47]).

1.  This is a substantial sentence given the objective facts of the offending.  However, the issue is whether it is outside the permissible range of sentences applicable to this offending and this offender.  It is not (at [23] and [24]).

Criminal Law (Sentencing) Act 1988 (SA) s 18A; Family Law Act 1975 (Cth), referred to.
R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; Pearce v The Queen (1998) 194 CLR 610; R v Wilkinson (2008) 101 SASR 21; R v Symonds [1999] SASC 217; R v McMutrie (2002) 83 SASR 261; R v Edigarov (2001) 125 A Crim R 551; Parker v The Queen (unreported, Tas CCA, Underwood J, 21 July 1994); R v Hamid (2006) 164 A Crim R 179; R v Parisi (2003) 86 SASR 183; The Queen v Sewell and Walsh (1981) 29 SASR 12, discussed.

R v SAUNDERS
[2017] SASCFC 86

Court of Criminal Appeal:  Peek, Stanley and Hinton JJ

PEEK J.    I would dismiss the appeal.  I agree with the reasons of both Stanley J and Hinton J.

STANLEY J.

Introduction

  1. This is an appeal against sentence. 

  2. The appellant was sentenced in the District Court, after pleas of guilty, for one count of property damage, one count of breaching bail and one count of contravening a term of an intervention order committed on 18…

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AGLC
R v Saunders [2017] SASCFC 86
Case
[2017] SASCFC 86
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant by a District Court Judge. The appellant had previously received a suspended sentence of two months imprisonment in November 2014, conditional on entering into a good behaviour bond for three years. Between May and September 2015, the appellant committed further offences, breaching this bond. While a conviction was entered for these offences, no further penalty was imposed. Subsequently, in October 2016, the appellant committed the offences that were the subject of this appeal, namely property damage, breach of bail, and contravention of an intervention order. These latter offences arose from an incident where the appellant attended the residence of Yvonne Rose Browne, smashed her bedroom window, and was found by police at the property.

The central legal issue before the appellate court was whether the sentence imposed for the October 2016 offending was manifestly excessive. The appellant argued that the starting point of 18 months imprisonment, which was then discounted for guilty pleas and time in custody, was too severe given the objective circumstances of the offending, including the lack of serious consequences, the appellant's intoxication, and his cooperation with police. The court was required to determine if the sentence fell outside the highest permissible range of sentences that could have been imposed by the sentencing judge.

The appellate court, comprising Peek, Stanley, and Hinton JJ, applied the principle that appellate intervention on the grounds of manifest excess is only warranted if the sentence imposed is demonstrably above the highest acceptable range. The court acknowledged that the offending, which involved waking the victim in the night and smashing her window while in breach of a bail agreement and an intervention order, was terrifying and precisely the type of conduct the orders were designed to prevent. Despite the lack of physical harm to the victim, the appellant's intoxication, and his subsequent cooperation, the court found that these factors did not render the sentence manifestly excessive. Instead, the court considered the sentence necessary as a deterrent, given the appellant's extensive criminal history, including prior convictions for similar offences. The court concluded that while the sentence was at the high end of the permissible range, it remained within that range.

The appeal was dismissed. Hinton J, while agreeing with the dismissal, noted that the sentencing judge's approach, particularly the use of section 18A of the Criminal Law (Sentencing) Act 1988 (SA) without clearly identifying notional sentences, made the appellate review difficult and carried a risk of double punishment. However, Hinton J also provided a rough test by considering notional sentences for each offence, suggesting a total head sentence of around 16 months imprisonment would have been appropriate, indicating that the imposed sentence was indeed at the higher end of the permissible range.

Orders

Orders of the court

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Background

Background to the litigation

In order to understand the basis of the appeal ground it is necessary to say something about the background to the sentencing. Background As I have said, the appellant was sentenced to two months imprisonment in November 2014. That sentence was suspended upon his entry into a bond to be of good behaviour for three years. Between 7 May 2015 and 2 September 2015 the appellant committed the offences of disorderly behaviour, hinder police, trespassing and contravene the term of an intervention order. These offences breached the bond entered into by the appellant in November 2014. An application for enforcement of a breached bond pursuant to s 57 of the Sentencing Act was filed in the District Court. On 27 June 2016 a District Court Judge entered a conviction with no further penalty for the fresh offending and found the breach of bond proved. No further penalty was imposed on the application for enforcement of a breached bond. On 18 October 2016 the appellant committed the offences the subject of this appeal. On 24 July 2016 the appellant was charged with assault. That matter was not before the sentencing judge. However, as a result of that charge, the appellant entered into a bail agreement which included conditions that he not be within 50 metres of Yvonne Rose Browne, that he would not be within 50 metres of any place where Yvonne Rose Browne resided, worked or attended from time to time. On the same day the appellant was also issued with an interim intervention order which included a term that he not contact or communicate with Yvonne Rose Browne either directly or indirectly in any way except with respect to contact and access to children pursuant to any order or direction of the Family Court or other courts exercising jurisdiction of the Family Law Act 1975 (Cth). Circumstances of the offending At about 2:15 a.m. on 18 October 2016 the appellant attended at Ms Browne’s residence at West Croydon. He knocked on her bedroom window and called her name. When she failed to respond, he smashed the window by punching it. Police were called and located the appellant next to the front fence of the residence with a bleeding right hand. The appellant was charged with property damage for the broken window and breach of bail and contravention of a term of an intervention order in relation to the bail agreement entered into on 24 July 2016 and the interim intervention order made the same day which prohibited him from approaching or contacting Ms Browne.Personal circumstances of the appellant At the time he was sentenced the appellant was 43 years old and single. As a small child both of his parents died sudden deaths within a short time of each other. The appellant was raised by an older sister. He attended the Ceduna Area School, completing Year 10. He has two children aged 10 and 17 who live with their mother in Ceduna. The appellant has a poor employment history, mostly confined to casual work including bricklaying. He has a long criminal history. Much of that offending is related to his abuse of alcohol. Relevantly, he has numerous convictions for damaging property, a number of convictions for breaching bail and two prior convictions for breaching an intervention order, the most recent in 2016. Approach on appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

STANLEY J
In my view, notwithstanding that physical violence was not inflicted on the victim of this offending, it must have been terrifying to be woken in the dead of night by the appellant banging on her window, in breach of an intervention order and the bail agreement, and then to have him smash the window when she refused to answer his summons. This was the very sort of menacing that the order and the condition of the appellant’s bail was intended to prevent. While, if the appellant’s conduct had resulted in physical injury being suffered by the victim, that would have aggravated the circumstances of the offending, neither the lack of physical harm to the victim, the appellant’s intoxication at the time, and his subsequent cooperation, renders the sentence imposed manifestly excessive. On the contrary, I consider that this offending called for a sentence that served as an effective deterrent given the appellant’s lengthy criminal history and the fact that he had come before the court only months earlier for breach of an intervention order. The sentence was at the high end of the permissible range but within that range.Conclusion I would dismiss the appeal.HINTON J: I agree with Stanley J for the reasons he gives that this appeal should be dismissed. I agree that the sentence is at the high end of the permissible range. The use of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) without the identification of notional sentences brings a degree of opacity that makes the appellate function difficult. Where, as here, the conduct satisfying the breach bail and breach intervention order offences was largely the same, approaching the determination of the appropriate sentence in the way the Judge did was not wrong in law, but it carried with it the risk of double punishment. The offending occurred in the context of a relationship that had broken down, where the appellant had been subject of an intervention order for some time, where the courts had previously been involved, and where there had been “ongoing jealousy issues”. Whether the Judge’s sentence is manifestly excessive can be roughly tested by considering the notional sentences that could have been imposed.[11] Having regard to all the circumstances of this case, including the respondent’s personal circumstances and antecedents, for the offence of damaging property, for which the maximum penalty is 10 years imprisonment, a starting point of around five -six months imprisonment would be appropriate. For the offence of failing to comply with a bail agreement, for which the maximum penalty is a $10,000 fine or imprisonment for two years, a starting point of around seven - eight months would be appropriate. For the offence of contravening a term of an intervention order, for which the maximum penalty is imprisonment for two years, a starting point of around 11 - 12 months would be appropriate. The sentences for the offences of breach bail and contravening a term of an intervention order would likely be ordered to be served wholly concurrently. The sentence imposed for the offence of damaging property would likely be ordered to be served partially concurrently with that for the offence of contravening a term of an intervention order. That means a total head sentence of around 16 months imprisonment would be appropriate.[11] This approach was taken in R v Symonds [1999] SASC 217 at [23]-[27] (Doyle CJ, Prior and Mullighan JJ agreeing).

Ratio Decidendi

Legal Principle Established

Established by: STANLEY J

To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing judge. In Hili v The Queen[7] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[8]… appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.[Citations omitted].[7] [2010] HCA 45, (2010) 242 CLR 520. [8] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 538 – 539.Consideration The maximum penalty for the offence of property damage is a term of imprisonment of 10 years. The maximum penalty for a breach of bail is a term of imprisonment of two years or a $10,000 fine. The maximum penalty for contravening a term of an intervention order is a term of imprisonment of two years. On appeal there is no complaint made about the sentencing judge estreating the bond and invoking the suspended sentence of two months imprisonment. The appellant’s complaint is that the starting point of 18 months and the consequent end result after discount for the guilty pleas and time in custody is manifestly excessive having regard to the lack of serious consequences of the offending, the appellant’s intoxication at the time, the fact that the appellant waited for the police to attend and his subsequent cooperation. It can be accepted that this is a substantial sentence given the objective facts of the offending. However, the issue is not whether the sentence imposed is one I would have imposed but whether it is outside the permissible range of sentences applicable to this offending and this offender. In my view it is not. There is no complaint about the appropriateness of the judge utilising s 18A. All three offences arose out of the same set of circumstances. It is appropriate that the sentence reflect a degree of concurrency, particularly with respect to the sentencing for the offences of breach of bail and breach of an intervention order. There is no complaint of double punishment in the Pearce v The Queen[9] sense.[9] (1998) 194 CLR 610 at 621-623.