R v Scuteri

Case [2018] SASCFC 103

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SCUTERI

[2018] SASCFC 103

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Lovell and The Honourable Justice Doyle)

11 October 2018

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - DELAY BETWEEN OFFENCE AND SENTENCE

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION

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

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES

Appeal against sentence for drug offences.

The appellant was sentenced on 8 May 2013 in the District Court to two years imprisonment, with a non-parole period of one year, for two drug offences. The sentence was suspended on the appellant entering into a good behaviour bond for a period of two years. Only 22 days after it was imposed, the appellant breached that bond by committing offending of a very similar nature; namely, one count of trafficking in a controlled drug and one count of manufacturing a controlled drug for sale.

On 15 March 2018, a District Court Judge estreated the bond and ordered that the appellant serve two years and six months cumulatively upon the two year sentence already imposed, resulting in a total head sentence of four years and six months. A new non-parole period of two years and three months was fixed.

Held, per Peek J (Lovell and Doyle JJ agreeing) dismissing the appeal:

1. The degree of leniency to be afforded to an offender for delay between the commission of an offence and sentencing is dependent upon the facts of the case. The Judge had proper regard to relevant matters, including the rehabilitation of the appellant and the reasons for the delay, when sentencing. He afforded significant leniency in the circumstances. R v Todd [1982] 2 NSWLR 517 distinguished.

2.       The Judge gave due consideration to the appellant’s circumstances in declining to estreat or reduce the suspended sentence.

3.       The Judge allowed a generous period of partial concurrency of sentence. He was not required to order full concurrency as between the sentences.

4. An appellable error within the House v The King (1936) 55 CLR 499 precepts must be demonstrated before the discretion of a sentencing Judge to order cumulative sentences will be interfered. No such appellable error is demonstrated.

5.       The head sentence and non-parole period imposed are merciful and not manifestly excessive in all of the circumstances. The Judge demonstrated no error in refusing to suspend the new sentence.

Sentencing Act 2017 (SA) s 114, referred to.
R v Todd [1982] 2 NSWLR 517, distinguished.
House v The King (1936) 55 CLR 499; Mill v The Queen (1988) 166 CLR 59; R v Borkowski (2009) 195 A Crim R 1;

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R v Scuteri [2018] SASCFC 103
Case
[2018] SASCFC 103
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, Mr. Scuteri, by the District Court. The dispute arose from the appellant's submission that the sentencing judge had not afforded sufficient leniency, particularly in light of the significant delay between the commission of the offences and the sentencing, and the appellant's progress towards rehabilitation. The appeal was heard by Peek, Lovell, and Doyle JJ of the Supreme Court of South Australia.

The central legal issues before the court were whether the substantial delay between the drug offences and the breach of a suspended sentence, and the subsequent sentencing, necessitated a very high degree of leniency, to the extent that no custodial sentence should be imposed. The appellant argued, by reference to *R v Todd*, that such delay would render it oppressive to order imprisonment or to enforce the breached bond, which had been breached only 22 days after its imposition.

The court considered the principles established in *R v Todd*, noting that the statement regarding "undue degree of leniency" required careful consideration of the specific factual circumstances of that case. It was highlighted that *Todd* involved a unique situation where jurisdictional issues prevented concurrent sentencing, leading to a need for flexibility. The court also referred to *The Queen v H, GJ (No 2)* and *R v Pickard*, which further elaborated on the mitigating effect of delay, particularly when the delay is not the fault of the accused and is accompanied by significant positive changes in the offender's life and evidence of complete rehabilitation. The court distinguished these cases from the present, implying that the specific facts of *Scuteri*'s case did not warrant the extreme leniency sought by the appellant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J
The later decision of this Court in The Queen v H, GJ (No 2) also has clear relevance in the present circumstances. The defendant had committed sexual offences against three victims in the 1980s and 1990s but the charges were not laid until 2011. In 2014, after the defendant had made various unsuccessful applications to have the proceedings stayed and evidence excluded, he pleaded guilty to five charges. He was sentenced in the District Court to 11 years and eight months imprisonment with a non-parole period of six and a half years. On appeal, this Court distinguished cases such as Todd, Pickard and R, AW, and stated:[23][11] The appellant relies on the decision of the New South Wales Court of Criminal Appeal in R v Todd.[24] In that case a number of offences were committed within a short period of time in two adjoining States; the problem was that each jurisdiction sentenced without reference to the other (thus negating partial concurrency of sentence) and substantial delay was generated by the involvement of two jurisdictions rather than one. The decision establishes a principle that extends beyond that particular factual situation, but at base the Court in Todd was primarily concerned with three things. First, the ability to allow a measure of concurrency, should that be called for by the circumstances under which multiple offences were committed. Second, mitigation by reason of delay that was not the fault of the accused. Third, (and associated with the second), mitigation by reason of an accused having already undergone a degree of rehabilitation during the period of delay preceding his ultimate sentencing.[12] The appellant also relies on the decision of this Court in R v Pickard,[25] where Gray J and Blue J each considered in detail the development of the law in this area since Todd. Reference to the authorities there discussed suggests that hypothetically the most powerful mitigating combination would be one of substantial delay, due entirely to the fault of governmental agencies, together with major changes in the situation of the accused, together with strong evidence of complete rehabilitation having been achieved. Obviously, the permutations of fact and degree in cases coming before the courts will be highly variable.[13] In Pickard, the case for mitigation was strong on the basis that: · it was remarkable and deplorable that such long delays occurred in the prosecution of the offences between January 2008 and July 2010;· no explanation whatsoever was proffered for the delays, which were clearly the fault of the investigating and prosecution authorities”;[26] · there were findings of “very substantially changed life circumstances of the defendant occurring during that delay”[27] ─ “she had moved to Perth, taken employment and was pregnant”;[28] and,· she “had completely rehabilitated herself from her earlier alcohol and drug abuse. Her earlier dysfunctional existence, the result of a poor family background, had been replaced by a responsible lifestyle of a young married mother”.[29] (Emphasis added)[23] [2014] SASCFC 102 (Peek J, with whom Blue and Stanley JJ agreed).[24] [1982] 2 NSWLR 517.[25] [2011] SASCFC 134.[26] Blue J at [94].[27] Blue J at [116].[28] Gray J at [26].[29] Gray J at [27].The present decision of the sentencing Judge

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Senior counsel for the appellant submitted that insufficient leniency had been afforded and that a very high degree of leniency should have been afforded by reference to the matter of rehabilitation. He submitted, ostensibly on the basis of the well-known judgment of Street CJ in R v Todd,[6] that the substantial delay here required a very high degree of leniency, namely that no custodial sentence should be imposed for either the serious subject drug offending or the beach of the previous suspended sentence for the same conduct. This was said to be because the delay “would render it oppressive to order a sentence of imprisonment now”; and further, the delay would render it “oppressive to enforce the breached bond”, which had been breached only 22 days after being imposed. [6] [1982] 2 NSWLR 517, 519-520: “Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.”Consideration “Todd was a very singular case”.[7] The statement in Todd that sometimes lengthy delay “can require what might otherwise be a quite undue degree of leniency being extended to the prisoner”[8] very much needs to be read against the background of the facts of the case. In Todd, the circumstances had denied the later New South Wales court of any power to backdate the later New South Wales prison sentence and thus there was no ability to afford a usual measure of concurrency of sentence with the earlier Queensland sentence (because he had already fully served it). This unusual pattern of circumstances, arising from two separate jurisdictions imposing separate prison sentences for what was largely one course of conduct, led to the need to impose a sentence for the New South Wales offending, the length of which would otherwise have appeared to be unduly lenient and distinctly out of line with sentences usually imposed for that sort of offending. [7] R v Borkowski (2009) 195 A Crim R 1, 12 (Howie J, with whom McClellan CJ at CL and Simpson J agreed).[8] [1982] 2 NSWLR 517, 520. That this was an important feature in Todd was emphasised by the High Court in Mill v The Queen when their Honours stated:[9]The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing court, must be seen to be appropriate in all the circumstances. In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd.The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.[9] (1988) 166 CLR 59, 66 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).