R v SIDDALL

[2013] SASCFC 141

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SIDDALL

[2013] SASCFC 141

Reasons for Decision of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Blue and The Honourable Justice Nicholson)

20 December 2013

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

The appellant pleaded guilty to three counts of threaten to kill or endanger life contrary to s19(1) of the Criminal Law Consolidation Act 1935 (SA) on 2 July 2013. The threats were made against a background of the appellant’s son having been killed in a motor vehicle accident and the appellant’s belief that the driver and front seat passenger were responsible. The appellant was sentenced to an immediate term of imprisonment for 18 months with a non-parole period of 12 months backdated to commence on 24 January 2013, when the appellant was taken into custody.

The appellant raised five grounds of appeal, namely: (1) the sentence was manifestly excessive; (2) the Judge erred in declining to suspend the sentence having regard to the time already spent in custody; (3) the Judge erred in finding that the appellant had a prior conviction for aggravated assault some five years previously; (4) the Judge erred in taking into account an instance of alleged threats made in May 2010; and (5) the Judge erred in describing the appellant as having an intermittent criminal record since he was a teenager.

Held (Nicholson J with Sulan and Blue JJ agreeing): -

1.  Appeal allowed on the basis of appeal grounds three and five (at [19]).

2.  Appellant re-sentenced to imprisonment for 18 months with a non-parole period of nine months, both backdated to 24 January 2013 (at [21]-[22]).

Criminal Law Consolidation Act 1935 s19, s353; Intervention Order (Prevention of Abuse) Act 2009 s31, referred to.
R v Ainsworth (2008) 100 SASR 238, considered.

R v SIDDALL
[2013] SASCFC 141

Court of Criminal Appeal:       Sulan, Blue and Nicholson JJ

SULAN J.

1. I agree with the reasons of Nicholson J.

   BLUE J.                 

2. I agree with Nicholson J.

   NICHOLSON J.

3. At the conclusion of the hearing of this appeal against sentence, the Court was unanimously of the view that the appeal should be allowed and the appellant re-sentenced.  The parties were advised that reasons would be published at a later date.  These are my reasons for joining in the orders of the Court.

4. On 2 July 2013 the appellant pleaded guilty in the Mount Gambier Magistrates Court to three counts of threaten to kill or endanger life contrary to s19(1) of the Criminal Law Consolidation Act 1935.  The maximum penalty for each count is ten years imprisonment.  The appellant was committed to the District Court for sentence. 

5. In addition, the appellant had pleaded guilty to contravening a term of an intervention order contrary to s31(2) of the Intervention Order (Prevention of Abuse) Act 2009.  By consent, the appellant withdrew his plea to this charge and the Director of Public Prosecutions thereafter entered a nolle prosequi on the understanding that the sentencing Judge could take into account that at the time of committing the three offences of threaten to kill or endanger life the appellant did so in breach of a restraining order and, further, that such breach was to be regarded as an aggravating feature of the offending.

6. On 30 August 2013, the appellant was sentenced, in the District Court, to an immediate term of imprisonment for 18 months with a non-parole period of 12 months backdated to commence on 24 January 2013.  This was the day that the appellant had been and from which he had remained remanded in custody for the offending.  At the conclusion of the appeal hearing, orders were made allowing the appeal and re-sentencing the appellant to the same head sentence but with a non-parole period of nine months.  The new sentence was not suspended.

   Background

7. The background to the offending is tragic.  The appellant’s son was killed in a motor vehicle accident.  He was travelling in the tray of a utility motor vehicle with two young women.  The driver was affected by alcohol and was speeding.  He lost control of the vehicle, the vehicle rolled and the appellant’s son was killed instantly.  Another young man was a passenger in the front of the motor vehicle at the time.  The driver was subsequently charged and sentenced to a term of imprisonment, not suspended, for causing death by dangerous driving.  At all times the appellant has blamed both the driver and the front seat passenger for the death of his son.  At all times the appellant has considered the penalty imposed on the driver to have been seriously inadequate.  It would seem that the appellant has not recovered from the loss of his son emotionally or psychologically and has maintained a deep-seated and unremitting anger towards both the driver and the front seat passenger.  He blames the front seat passenger who is the local publican’s son because he was the one who served liquor to the driver and he was the one who arranged for the driver to drive the appellant’s son together with others to a party on the night of the accident. 

8. Further background and the circumstances of the three charged offences has been summarised in the remarks of the sentencing Judge in the following terms.

   The fatal crash occurred in June 2009. You eventually became angry and frustrated over the time the proceedings were taking and you began acting and talking in terms which suggested that you were contemplating taking matters into your own hands.

   In May 2010 a police officer visited the scene of the fatal crash. He observed a length of rope tied in a hangman’s noose dangling from a tree with a section of a broken vehicle panel wedged into the rope. He saw that the words ‘For driver and front seat passenger’ had been written onto the panel. This was plainly a reference to the driver and the publican’s son, and I am satisfied that all this was your doing.

   In July 2011 a police officer spoke to you and offered to arrange counselling for you. You told him that you thought imprisonment for 12 or 13 years would be a reasonable sentence for the driver, that if the courts did not do their job you were committed to making the driver and the publican’s son pay, and that if either of them walked in front of your vehicle you would not be stopping. You also expressed your anger towards police for not taking any action against the hotel and you implied that you were intending to somehow get yourself killed by police at the hotel.

   In August 2011, the driver was sentenced to imprisonment for four years, and a nonparole period of 18 months was fixed. You regarded this as manifestly inadequate and you regarded credit the driver received for his pleas to have been wrongly given and your view of the sentence exacerbated both your grief and your feelings of animosity towards the driver and you believed that the publican’s son had escaped unpunished.

   Your employer summoned you to a meeting in November 2012 to discuss an aspect of your workplace performance. You had somehow learned that the driver was due to be released on parole in February 2013 and you told the two men who were discussing your work with you that it would not matter after February. You went on calmly to tell them what you were going to do. You told them that you would wait outside the gaol and then kidnap the driver after he was released. You told them that you would then drive to Millicent and crash your vehicle through the front wall of the hotel. You told them that you would then kill the driver, get out of your vehicle and kill the publican’s son in front of his family. You told them that you would then wait for the police and that the police would probably have to shoot you and that you would not be returning their fire. You concluded by telling them that you had not told them anything over and above what the police already knew. What you said on this occasion amounts to the first and second of your offences.

   You were spoken to by a psychologist in December 2012 and you said very much the same to him. What you said on this occasion amounts to the third of your offences.

9. As the sentencing Judge pointed out, the offences were plainly serious and the fact that they were committed in breach of an intervention order aggravated the situation.  They were not isolated.  For example, the appellant had made threats on television to kill the driver and the passenger and it was this that prompted the making of the intervention order.  Thereafter, according to police officers involved in the matter generally, the appellant had repeatedly and unrestrainedly expressed his anger and made threats towards the driver and the passenger.  The victims of the offending, understandably, have been in fear for their well being and remain so. 

10. Against this background, the Judge sentenced the appellant to a period of 18 months imprisonment with a non-parole period of 12 months commencing on 24 January 2013 when the appellant was arrested and remanded in custody.  The Judge declined to suspend the sentence.

    Grounds of appeal and consideration

11. The appellant raised five grounds of appeal.

    1.   The sentence was manifestly excessive.

    2.   The learned sentencing Judge erred in declining to suspend the sentence having regard to the time already spent in custody.

    3.   The learned sentencing Judge erred in finding that the appellant had a prior conviction for aggravated assault some five years previously in circumstances where it had been conceded by the Crown that he did not.

    4.   The learned sentencing Judge erred in taking into account an instance of alleged threats made in May 2010 and finding that the appellant was responsible for it without any factual proof.

    5.   The learned sentencing Judge erred in describing the appellant as having an intermittent criminal record since he was a teenager.

12. At the end of the hearing, the Court was satisfied that grounds three and five had been made out and that, as a consequence, the appeal should be allowed.  Counsel for the Director conceded ground three but argued (faintly) that ground five had not been made out. 

13. The offender history record first put before the Judge showed the appellant to have committed in August 2006 an offence of aggravated intentionally cause harm for which a term of six months imprisonment suspended was said to have been imposed.  However, counsel for the Director accepted that the offender history report was in error in this respect and that the August 2006 offence had in fact been committed by another person.  A second offender history report was placed before the Judge with this August 2006 offence omitted.  Nevertheless, it seems that the Judge overlooked the second offender history report when his Honour came to sentence the appellant.  Indeed, his Honour specifically referred to an aggravated assault having been committed some five years ago in a manner which suggested that the fact of this offending was of significance to his Honour’s consideration of the matter. 

14. When that offence is removed from the appellant’s record, it appears that he had not offended in any way during the period 1995 to the date of the present offences, a period of more than 17 years.  Furthermore, none of the appellant’s offending prior to 1995 involved offences of violence or, at least, violence of any significance.  He does have convictions for disorderly behaviour and resist police in 1991 and disorderly behaviour and hinder police in 1995.  However, these were dealt with by way of fines and an order for community service. 

15. There is a further error when the two offender history records are compared which was drawn to the attention of the Court on appeal but which was not drawn to the attention of the Judge.  The earlier offender history record shows an offence of imposition having been committed in 1984 for which the appellant was said to have been sentenced to imprisonment for one month not suspended.  However, this offence does not appear on the later, and correct, offender history record.  It is not apparent on the face of the sentencing remarks that this second inaccuracy played any significant role in his Honour’s consideration of the matter.  Nevertheless, the correct position insofar as the appellant’s criminal record is concerned discloses these differences, not apparent to or acted upon by the sentencing Judge.

    (i)The appellant has not, in fact, had the experience of a one month term of imprisonment.

    (ii)The appellant has not, in fact, had the benefit of a six month suspended prison sentence.

    (iii)The appellant does not have a history of physical violence of any significance.

    (iv)The appellant has not offended (apart from the present offending) since 1995.

16. In the circumstances, I am satisfied that not only did the Judge err in having regard to the August 2006 aggravated intentionally cause harm offence but his Honour also erred in finding that the appellant had offended on an intermittent basis since he was a teenager.

17. The sentencing Judge correctly pointed out a number of personal factors that ordinarily would support the granting of leniency with respect to this appellant.  At the time of sentencing he was 48 years of age (with the criminal record that I have just explained above) and with a good work history.  He had been in custody from the date of arrest on 24 January 2013 until sentence on 30 August 2013, a period of a little over seven months.  The Judge recognised that this period of incarceration had had financial and psychological effects on the appellant’s wife.  But it also must have had a salutary effect on the appellant.  In addition, the psychiatric report available to the Judge indicated that, in the psychiatrist’s opinion, the appellant did not pose an immediate risk of causing harm to either the driver or the publican’s son, although he did warn that alcohol might render the appellant unpredictable.  In this last respect – the risk the appellant might pose for the future – I add the following.  The appellant’s son was killed some three and a half years before the appellant was taken into custody in January 2013.  The appellant has had opportunities to act on his anger in a physical way with respect to both victims but has not done so.  In addition, it was agreed before the sentencing Judge that the appellant had not intended to carry out any of the threats.

18. Section 353(4) of the Criminal Law Consolidation Act 1935 (SA) provides as follows.

    (4) Subject to subsection (5), on an appeal against sentence, the Full Court must—

    (a)     if it thinks that a different sentence should have been passed—

    (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.

    I accept for present purposes but without expressing a concluded view, that, as White J held in R v Ainsworth.[1]

    The effect of s353(4) is that this Court may quash the sentence appealed against only if it is first satisfied that some other order should have been made. Otherwise the Court must dismiss the appeal.

    Ordinarily, a mere error in the sentencing process will not provide a basis for interference unless the sentence can be seen to be manifestly excessive or manifestly inadequate or there has been a miscarriage of justice requiring intervention by the appellate court.

    [1] (2008) 100 SASR 238 at [68].

19. In the present case, appeal grounds three and five have been made out.  I am satisfied that the Judge acted on a wrong basis in these respects.  I am also satisfied that this error was of sufficient significance such that a miscarriage of justice has occurred in the sense that the appellant has been deprived of the likelihood of a more lenient sentence.  To my mind, the misapprehended criminal record of the appellant was significant, at the very least, to the length of the non-parole period. 

    Re-sentence

20. In the circumstances it is not necessary to form a concluded view about appeal grounds one, two and four. 

21. Upon re-sentencing the appellant, the Court considered that the appellant should be re-sentenced to a head sentence of 18 months imprisonment but with a non-parole period of nine months backdated to the time when the appellant was taken into custody, that is, 24 January 2013.  The non-parole period of 12 months fixed by the Judge failed to pay sufficient regard to the lengthy period of time during which the appellant had been in custody as at the time of sentencing, the appellant’s good prior criminal record after 1995 and lack of violent antecedents, and the likely benefit to the victims, the community and the appellant that a more substantial period of time under supervision on parole, after release, would provide.  In the circumstances, and given in particular the seriousness of the offending and the need for general deterrence in this area, like the Judge, the Court formed the view that there was no good reason to suspend this sentence.

22. It is for these reasons that I joined in the allowing of the appeal.  And it is for these reasons that when undertaking the re-sentencing of the appellant I joined in the orders of the Court that the appellant should be re-sentenced to a head sentence of 18 months imprisonment but with a non-parole period of 9 months backdated to the time the appellant was taken into custody, that is, 24 January 2013.