R v Saunders - [2017] SASCFC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SAUNDERS
[2017] SASCFC 21
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
22 March 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
Appeal against sentence. In 2015, the appellant was dealt with for the offences of criminal trespass in a place of residence and damage property committed on 29 July 2013 by way of entry into a bond to be of good behaviour. One of the conditions of that bond was that the appellant would be called up for sentence for the offences in the event he were to breach the bond. The appellant subsequently committed a number of breaches which were admitted. The appellant was sentenced to a term of imprisonment of 16 months for the offence of criminal trespass in a place of residence and six weeks for the offence of damage property, which was to be served wholly concurrently with the sentence for the criminal trespass offence. The Judge imposed a non-parole period of 10 months backdated to commence on 7 September 2016.
Following the close of submissions on sentence, but prior to date listed for the sentencing of the appellant, the appellant’s counsel contacted the Judge’s Chambers and requested the opportunity to make further submissions on the appropriateness of a home detention order as the appellant’s circumstances had changed. It was communicated to the appellant’s counsel that, while the Judge was not presently minded that it would be an appropriate option in the circumstances, submissions with respect to home detention could be made on the date listed for sentencing. On the date of sentencing, the Judge proceeded to sentence without hearing further submissions from the parties.
Whether the Judge erred in failing to afford the appellant the opportunity to make submissions on the issue of whether a home detention order report should be ordered when the Judge considered immediate imprisonment was the appropriate penalty; whether the Judge erred in failing to give reasons for not ordering a home detention order report; whether the Judge failed to adequately consider that the term of imprisonment should have been suspended; whether the Judge failed to provide reasons in failing to suspend the sentence.
Held per Nicholson J (Kourakis CJ and Parker J agreeing):
1. Appeal allowed; the Judge erred by proceeding to sentence without hearing from the parties on the issue of home detention.
2. District Court sentence set aside.
3. The appellant to be resentenced for the criminal trespass offence to imprisonment for a period of 11 months and one week, backdated to commence on 7 September 2016.
4. The appellant is to serve six months of the sentence in order 3 with the balance of…

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.

Continue reading R v Saunders

Details

AGLC: R v Saunders [2017] SASCFC 21
Case: [2017] SASCFC 21
Decision Date: 22 March 2017

CaseChat Overview and Summary

The appeal concerned the appellant, who had been sentenced by a Judge of the District Court for criminal trespass in a place of residence and damage to property. The appellant had initially been placed on a bond for these offences, with a condition that he could be called up for sentence if he breached the bond. He subsequently admitted to multiple breaches of this bond, including failures to report, comply with a curfew, attend supervision, and testing positive for cannabis.

The central legal issue before the Full Court was whether the sentencing Judge had erred in revoking the appellant's bond and imposing custodial sentences without considering further submissions that had been agreed upon. Specifically, the court had to determine if the appellant had been denied procedural fairness, constituting a process error, by not being afforded the opportunity to make these further submissions prior to sentence. The court also considered its powers on appeal against sentence under section 353(4) and (5) of the Criminal Law Consolidation Act 1935 (SA).

The Full Court found that the sentencing Judge had overlooked an agreement to consider further submissions, which had been reached via correspondence. This oversight, coupled with the appellant's counsel at the time failing to remind the Judge of this agreement, resulted in a denial of procedural fairness. The Court agreed with the appellant's submission that he should not be prejudiced by this failure and that intervention was justified. The respondent conceded this error.

Consequently, the Full Court set aside the sentence imposed by the District Court and proceeded to resentence the appellant. The Court concluded that a lesser sentence was warranted and ordered that the appeal be allowed on this basis.

Orders

Orders of the court

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Background

Background to the litigation

These are my reasons for joining in the orders of the Court.Background The appellant initially came up for sentence before a different Judge of the District Court on 11 August 2015 for the offences of criminal trespass in a place of residence[1] and damage property,[2] both of which were committed on 29 July 2013. On that occasion, the Judge placed the appellant on a bond to be of good behaviour, a condition of which was that he would be called up for sentence if he breached the bond. [1] Contrary to section 170A of the Criminal Law Consolidation Act 1935 (SA).[2] Contrary to section 85(3) of the Criminal Law Consolidation Act 1935 (SA). The appellant admitted a number of breaches of the bond. The breaches comprised five breaches of a bail agreement, involving failures to report to Community Corrections, to comply with a curfew condition as required by the terms of the bail agreement and to attend for supervision. He also tested positively for the presence of cannabis. On 20 May 2016, the appellant failed to attend court in order to respond to the breach proceedings and a warrant for his arrest was issued. The appellant appeared ex-custody on 23 May 2016. The appellant was remanded for a bail hearing the following day, on 24 May 2016. At the bail hearing, the appellant admitted to the breaches of the bond, was granted bail and a date was fixed for submissions. Reports were ordered to assist with sentencing. However, the appellant again failed to attend court on the day listed for sentencing submissions, 24 June 2016. Bail was revoked and another warrant issued. On 29 July 2016, the appellant appeared on a bench warrant before the sentencing Judge. No application for bail was made and the breach proceedings were adjourned for submissions. On 8 September 2016, an amended application for enforcement of a breach of bond was filed by the prosecution which embraced the breaches earlier identified. On 15 September 2016, sentencing submissions proceeded and the matter was adjourned to 8 November 2016 for sentence. On 8 November 2016, the sentencing Judge revoked the bond and imposed sentences for the underlying offences. For the offence of criminal trespass in a place of residence, the maximum penalty for which is three years imprisonment, the Judge imposed a sentence of imprisonment for 16 months, reduced from a starting point of 20 months on account of the plea of guilty.[3] For the offence of property damage, his Honour imposed a term of imprisonment of six weeks reduced from a starting point of eight weeks on account of the plea of guilty.[4] His Honour ordered that the sentence for the property damage offence be served wholly concurrently with the sentence for the criminal trespass offence, resulting in a total term of imprisonment of 16 months. His Honour imposed a non-parole period of ten months and backdated the sentence to commence on 7 September 2016 in order to take account of time served in custody. There has been no challenge to the Judge having allowed for time served in this way.[3] It is common ground that the timing of the appellant’s pleas was such as to give rise, pursuant to section 10C of the Criminal Law (Sentencing) Act 1988, to an entitlement of up to 20 per cent discount for both offences. [4] This reduction amounts to a reduction of 25 per cent notwithstanding that the maximum discount permitted by statute appears to have been 20 per cent. However, in the circumstances of this matter, nothing turns on this. The grounds of appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KOURAKIS CJ NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ, NICHOLSON J

After the delivery of sentence, counsel for the appellant arranged for a home detention bail report to be obtained which provides, inter alia, that a proposed residence, being that in which the appellant lives with his partner, was deemed suitable for home detention purposes. The existence of the report goes no further for present purposes than demonstrating that, had submissions on the question of a home detention order been received and a report ordered, it would have been open to the appellant to argue that a suitable address had been identified such that the discretion to grant a home detention order was enlivened, at least to that extent.Consideration Counsel for the appellant might be criticised for not having risen to his feet with a request to be heard prior to the Judge delivering or continuing to deliver the sentencing remarks. It would appear that the Judge had overlooked the agreement reached in correspondence to the effect that further submissions could be put which, by implication, would be considered prior to sentence. The appellant’s counsel at the appeal (who was not counsel at the sentencing stage) has submitted that the appellant was denied a hearing on this issue which constituted a denial of procedural fairness such as to comprise a process error, in the House v The King[8] sense, which of itself justifies intervention.[9] Counsel also submitted that the appellant should not be prejudiced by the failure of counsel below to remind the Judge of the need for further submissions whatever the reason for that failure may have been and I interpolate, including misplaced courtesy to the bench, inadvertence or carelessness. I agree with both those submissions. Further, as I have indicated, the respondent has conceded error in this respect. As such, this Court should intervene to consider whether or not the same or a different sentence ought to be imposed. [8] (1936) 55 CLR 499.[9] See, for example, Allesch v Maunz [2001] HCA 40 at [35]-[36] (Kirby J). Section 353(4) and (5) of the Criminal Law Consolidation Act 1935 provides as follows.(4)Subject to subsection (5), on an appeal against sentence, the Full Court must— (a) if it thinks that the sentence is affected by error such that the defendant should be re-sentenced— (i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or (ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or (b) in any other case—dismiss the appeal. (5)The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.In my view, a lesser sentence is warranted in this case and the appellant should be resentenced accordingly. As such, and for the reasons given, I would set aside the District Court sentence and proceed to resentence the appellant. Resentence