R v Saunders

Case [2011] SASCFC 37

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SAUNDERS

[2011] SASCFC 37

Judgment of The Court of Criminal Appeal

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

29 April 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TIME SPENT IN CUSTODY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER

Permission to appeal against sentence by the Director of Public Prosecutions - defendant pleaded guilty to one count of aggravated robbery and two counts of aggravated causing serious harm with intent to cause serious harm - where Judge declared the defendant a serious repeat offender - where defendant was sentenced to a head sentence of 12 years’ imprisonment which was reduced by two years and 17 days on account of time spent in custody - where unexpired balance of sentence for which defendant had been on parole, taken into account - where Judge fixed a non-parole period of eight years - whether Judge proceeded under a misapprehension of fact as to the time the defendant had spent in custody - whether Judge misapplied the statutory provisions applicable to sentencing a serious repeat offender. 

Principles regarding applications by the Director of Public Prosecutions for permission to appeal against sentence discussed - Court’s powers and duties on appeal against sentence discussed.

Held:  Permission to appeal against sentence granted - appeal allowed - sentence imposed by Judge set aside - defendant resentenced.

Criminal Law Consolidation Act 1935 (SA) s 23(1), s 137(1), s 340, s 352 and s 353; Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 18A, s 20A, s 20B, s 20C, s 23, s 32 and s 32A; Sentencing Act 1995 (WA) s 98; Habitual Criminals Act 1957 (NSW) s 4(1) and s 6; Correctional Services Act 1982 (SA) s 74 and s 75; Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009 (SA) s 10, referred to.
Malvaso v The Queen (1989) 168 CLR 227; Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; Dinsdale v The Queen (2000) 202 CLR 321; R v Marikar [2010] SASCFC 36; R v Drewett (1983) 35 SASR 344; R v Mangelsdorf (1995) 66 SASR 60; R v Elliott (2001) 121 A Crim R 254; R v Ivic [2006] SASC 8; R v Robinson [2004] SASC 189; R v Meers (1998) 101 A Crim R 329; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Project Blue…

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R v Saunders [2011] SASCFC 37
Case
[2011] SASCFC 37
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions sought permission to appeal against the sentence imposed on the respondent, who had pleaded guilty to aggravated robbery and two counts of aggravated causing serious harm with intent to cause serious harm. The sentencing judge had declared the respondent a serious repeat offender and imposed a head sentence of 12 years' imprisonment, reduced by time spent in custody, with a non-parole period of eight years. The Director argued that the sentencing judge had miscalculated the time spent in custody and had misapplied the statutory provisions concerning serious repeat offenders, leading to a manifestly inadequate non-parole period.

The court was required to determine whether the sentencing judge erred in the computation of the time the respondent had spent in custody and whether the judge had correctly applied the provisions of section 20B of the Criminal Law (Sentencing) Act 1988, which mandates that the non-parole period for a serious repeat offender must be at least four-fifths of the head sentence. The court also considered whether the head sentence and the non-parole period were manifestly inadequate given the gravity of the offences and the respondent's prior criminal history.

The court found that the sentencing judge had made an error in calculating the time in custody, to the respondent's favour, by approximately two months and 23 days. More significantly, the court determined that the judge had plainly erred in believing they retained a discretion not to fix a non-parole period of at least four-fifths of the head sentence, despite the declaration of the respondent as a serious repeat offender. This misapplication of section 20B led to a non-parole period that the court considered manifestly inadequate. The court also found the head sentence to be too low, notwithstanding the pleas of guilty and the discount given.

Consequently, the court granted the Director permission to appeal, allowed the appeal, and set aside the original sentence. The court resentenced the respondent to a total term of imprisonment of 13 years and two months, to be served cumulatively on the unexpired balance of his previous sentence, resulting in a total period of imprisonment of 15 years, nine months, and 20 days. A non-parole period of 11 years and 10 months was fixed, commencing from the date of the original sentencing.

Orders

Orders of the court

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Background

Background to the litigation

The Director of Public Prosecutions seeks permission to appeal, arguing that there was an error in computation of the time in custody and that the non-parole period is manifestly inadequate.Background The three offences occurred at the premises of a scrap metal business at Ottoway. Early one morning the respondent entered the shopfront of the business. Prior to making any demand he struck one of the employees in the head with a machete. That person fell to the ground. The respondent then began to demand money from a second employee behind the counter. Having been given cash, the respondent threatened to chop off the second man’s head if he were not given money from the safe. While that man complied with the demand the respondent struck him from behind with the machete. Both men were seriously injured and much traumatised by the attacks. In respect of each assault the respondent pleaded guilty to aggravated causing serious harm with intent to cause serious harm. More than $15,000 was taken by the respondent. He pleaded guilty to aggravated robbery. At the time of these offences the respondent was just short of 26 years of age. He was sentenced some two years later. The delay was, in part, attributable to the matter being set down for trial and the pleas of guilty being entered on the day of trial. He is now 28 years of age. He has a serious record of prior offending dating back to 1998. He was on parole at the time of these offences. Included in that record were several offences on the basis of which the judge made a declaration that the respondent was a “serious repeat offender”, pursuant to s 20B of the Criminal Law (Sentencing) Act 1988. That meant that the court was not bound to ensure that the sentence imposed was proportional to the offending and the non-parole period to be fixed had to be at least four-fifths of the head sentence: s 20B(4). No complaint is now made about that order.Analysis I have had the benefit of reading in draft the reasons of Gray J and White J. I propose to deal with the issues raised by this appeal quite briefly. It is apparent that the sentencing judge made an error in respect of the time in custody for which the respondent had to be credited. It appears that it was an error in the respondent’s favour to the extent of two months and 23 days. This is a matter which could have been raised with the sentencing judge and corrected after the sentence was imposed, utilising s 9A of the Sentencing Act. I would not have granted permission to appeal on this basis alone. The other error complained of is that the sentencing judge took the view that notwithstanding s 20B of the Sentencing Act, he retained a discretion not to fix a non-parole period of at least four-fifths of the head sentence. This was plainly wrong and has led to the imposition of a non-parole period which in my view is manifestly inadequate. I consider that the head sentence was also manifestly inadequate. These were three serious crimes. The robbery offence carried with it a maximum sentence of life imprisonment and the causing serious harm with intent offences, which were aggravated, attracted maximum sentences of 25 years imprisonment. Notwithstanding that the Director of Public Prosecutions made no complaint about the starting point selected by the sentencing judge, or about the discount given for the pleas of guilty, I consider that the head sentence referable to these crimes was simply too low.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J
Having determined a total period of imprisonment and having determined the non-parole period to apply to that term, I have considered the application of the principle of totality. The defendant is still a relatively young man. If the total period of imprisonment identified above is to be served, he will not be released until his early forties. It is the overall term in these circumstances that is to be considered against the principle of totality. In my opinion, there is no basis, having regard to the severity of the defendant’s offending, his antecedents and the making of the section 20B declaration, to conclude that the sentence is crushing. I would not make any reduction to the proposed sentence on account of the principle of totality. In my view, the protection of the community is of significant importance.Conclusion I would grant the Director permission to appeal against sentence. I would allow the appeal. I would set aside the sentence imposed by the sentencing Judge. I would make a declaration that the defendant is a serious repeat offender. I would resentence the defendant with respect to the offence of aggravated robbery and the two offences of aggravated causing serious harm with intent to cause serious harm to the one sentence pursuant to section 18A of the Sentencing Act to a term of imprisonment of 13 years and two months. I would direct that that sentence be served cumulatively on the unexpired balance of the defendant’s previous sentence, that unexpired balance being a period of two years, seven months and 20 days. As a consequence of the terms of section 75 of the Correctional Services Act, that sentence is to commence on the day of sentencing, which I would fix to be the date when the defendant was first sentenced; 16 November 2010. In respect of the total period of imprisonment faced by the defendant of 15 years, nine months and 20 days, I would fix a non-parole period of 11 years and 10 months, that period to commence on the same date; 16 November 2010.VANSTONE J:Introduction The respondent was sentenced to imprisonment for twelve years for two serious offences of violence committed in the course of robbing the victims at the point of a machete. The judge was obliged to take into account some time spent in custody on remand prior to sentence and also to fix a non-parole period in relation to the new head sentence together with a period of unexpired parole. A non-parole period of eight years was fixed in respect of the final head sentence of twelve years, seven months and three days. The Director of Public Prosecutions seeks permission to appeal, arguing that there was an error in computation of the time in custody and that the non-parole period is manifestly inadequate.Background The three offences occurred at the premises of a scrap metal business at Ottoway. Early one morning the respondent entered the shopfront of the business. Prior to making any demand he struck one of the employees in the head with a machete. That person fell to the ground. The respondent then began to demand money from a second employee behind the counter. Having been given cash, the respondent threatened to chop off the second man’s head if he were not given money from the safe. While that man complied with the demand the respondent struck him from behind with the machete. Both men were seriously injured and much traumatised by the attacks. In respect of each assault the respondent pleaded guilty to aggravated causing serious harm with intent to cause serious harm. More than $15,000 was taken by the respondent. He pleaded guilty to aggravated robbery.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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