R v Siviour

[2016] SASCFC 51

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SIVIOUR

[2016] SASCFC 51

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Doyle)

11 May 2016

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON

The appellant pleaded guilty to a number of offences. Differing discounts were applicable in respect of the offences. The maximum discount was not given for some of the offences. No reasons were articulated for not giving the full discount. The sentencing judge imposed a term of imprisonment of 13 years, and fixed a non-paroled period of eight years. 

The appellant appealed on various grounds, contending that the sentencing judge erred in relation to the guilty plea discounts in respect of some of the offences, and that the head sentence and non-parole periods were manifestly excessive.

Held per Doyle J (Vanstone and Kelly JJ agreeing), allowing the appeal:

1.       The sentencing judge failed to articulate any reasons for not giving the full discount in respect of some of the offences.  In the circumstances of this case, this involved error and warrants this Court exercising the sentencing discretion afresh.

2.       The appellant is resentenced to a head sentence of 11 years and three months imprisonment, with a non-parole period of six years and six months.

Criminal Law Consolidation Act 1935 (SA) s 20, s 20(3), s 39, s 134, s 170(1), s 172(1); Criminal Law (Sentencing) Act 1988 (SA) s 10C(2)(a), s 10C(2)(f), s 10C(4), s 10C(4)(c), s 18A, referred to.
R v Dwyer (2015) 121 SASR 587; R v Nguyen [2015] SASCFC 40; R v McPhee [2014] SASCFC 107; R v Wakefield (2015) 121 SASR 569; R v Bridgland [2016] SASCFC 28; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Bagnato (2011) 112 SASR 39; R v Copeland (No 2) (2010) 108 SASR 398; R v Deng [2015] SASCFC 176; R v Palmer [2016] SASCFC 34, considered.

R v SIVIOUR
[2016] SASCFC 51

Court of Criminal Appeal:       Vanstone, Kelly and Doyle JJ

1. VANSTONE J:     I would allow the appeal.  I agree with the orders proposed by Doyle J and with his reasons.

2. KELLY J:             I would allow the appeal.  I agree with the orders proposed by Doyle J and with his reasons. 

   DOYLE J:

3. The appellant pleaded guilty in the District Court to a number of offences committed by him on 11 May 2014.  The sentencing judge imposed a term of imprisonment of 13 years, and fixed a non-parole period of eight years.  He declined to suspend the sentence.

4. The appellant appeals on various grounds, contending that the sentencing judge erred in relation to the guilty plea discounts in respect of some of the offences, and that the head sentence and non-parole periods were manifestly excessive.

   Background

5. The appellant was arraigned on an Information dated 10 August 2015, and pleaded guilty to nine of the counts charged.  The balance of the charges were the subject of a nolle prosequi.  For convenience I set out the offences charged, the relevant sections of the Criminal Law Consolidation Act 1935 (SA) and the maximum penalties in respect of each offence.

Count	Offence	CLCA	Maximum Penalty
1	Aggravated serious criminal trespass	s 170(1)	Life
2	Aggravated assault	s 20(3)	4 years
3	Aggravated assault	s 20(3)	4 years
5	False imprisonment	Common law	At large
7	Theft	s 134	10 years
8	Aggravated assault	s 20(3)	4 years
11	Kidnapping	s 39	20 years
13	Aggravated blackmail	s 172(1)	20 years
14	Assault	s 20	2 years

1. By way of summary of the appellant’s offending, he arrived at the home of the two victims (a male and a female) in Cowell at about 6.00 am on Sunday, 11 May 2014.  Unannounced, he entered their home armed with an imitation firearm and a taser (count 1).  The purpose of the invasion was apparently an attempt to recover an alleged drug debt. 

2. Once inside the victims’ residence, the appellant tasered the male victim (count 2) and threatened to taser the female victim (count 3).  The appellant then tied the male victim’s ankles and wrists, and took various items of property from the premises, which he loaded into a vehicle which he had hired for this purpose (count 7).  He placed the male victim in the boot of the car, and the female victim in the front of the car.

3. The appellant then drove the vehicle to the suburbs of Adelaide, which the sentencing judge said must have taken at least five hours.  During a stop near Whyalla the appellant tied the female victim’s ankles together.  During a further stop after passing through Port Augusta, apparently in response to complaints from the male victim in the boot of the car, the appellant tasered the male victim (count 8). 

4. On arrival at an address in Ottoway, in the suburbs of Adelaide, the appellant removed the male victim from the boot and assaulted him in the kitchen of the house at that address (count 14).  The appellant demanded payment of $4,000 on account of an alleged drug debt.  Whilst the male victim was detained at the Ottoway address by an accomplice of the appellant (Mr Willscher), the appellant demanded that the female victim drive to a place where she was to steal drugs or money (count 13), but from which she managed to escape and arrange for assistance, and ultimately police intervention.

5. The kidnapping charge (count 11) related to the appellant’s conduct described above in taking and detaining the male victim, and the false imprisonment charge (count 5) related to the detention of the female victim.

6. On any view, the appellant’s offending was serious.  It was planned, premeditated, violent and occurred over an extended period of time.  There were numerous opportunities for the appellant to cease his offending during the course of the day, none of which he took.  The sentencing judge aptly described the offending as involving an “unfathomable, unrestrained and sustained” episode, and out of all proportion to the perceived drug debt.

7. As was to be expected, the victim impact statements made plain the traumatic nature of the events from the victims’ perspectives.  The offending will have long term deleterious effects on the victims. 

8. The appellant’s counsel put little by way of explanation for the offending, other than that it seems to have stemmed from an amphetamine dependency.

9. The sentencing judge noted that the appellant barely had a record of relevance, save for a dishonesty offence committed in late December 2012.  The appellant was given a suspended sentence of nine months imprisonment for this offence in July 2014.

10. The sentencing judge noted that the appellant was a 29 year old man, and single.  He had been brought up in a stable and supportive environment.  He had received a truncated education, but had achieved a consistent employment history, including as a shearer.  His Honour referred to a report that had been obtained from a psychologist, which amongst other things expressed the view that with appropriate treatment the appellant’s risk of reoffending might be reduced from a moderate level to a low to moderate level.

11. The sentencing judge then turned to consider the discount the appellant was entitled to on account of his guilty pleas.  The sentencing judge explained that by reason of the pleas of guilty occurring on the eve of trial, the appellant was only “entitled to a maximum of 10% discount” on counts 1 (aggravated trespass), 2 and 3 (aggravated assault), 5 (false imprisonment), 7 (theft) and 13 (aggravated blackmail).  However, he was “entitled to 40% discount for pleading guilty very early” on counts 8 (aggravated assault), 11 (kidnapping) and 14 (assault) because these were fresh counts only recently included on the Information.

12. In relation to the offences where “the 40% discount applies”, applying s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), the sentencing judge imposed a single penalty of six years imprisonment, reduced to four years on account of the early pleas.  In relation to the remaining offences, the sentencing judge imposed a single penalty of 10 years imprisonment, reduced to nine years on account of the guilty pleas.  The sentencing judge held that the four years and nine years should be served cumulatively, giving an effective head sentence of 13 years.

13. In fixing a non-parole period, the sentencing judge noted that personal circumstances carried more weight at this stage of the sentencing process.  His Honour also noted that the appellant had expressed contrition, which was reflected in part in his pleas of guilty.  He was remorseful, retained the support of his family, and was still a relatively young man with prospects of employment when released.  However, the sentencing judge noted the high degree of sustained terror caused by the offending, and the importance of a distinct deterrence message to persons inclined to take the law into their own hands for the purpose of enforcing drug debts.  His Honour fixed a non-parole period of eight years. 

14. The sentencing judge concluded by noting that the offences were simply too serious to consider suspension, but backdated the sentence to 11 May 2014 when the appellant had been taken into custody.

    The appeal

15. The grounds of appeal are as follows:

    1.   The head sentence is manifestly excessive.

    2.   The non-parole period is manifestly excessive.

    3.   The sentencing judge erred in that he failed to consider concurrent or partially concurrent sentences.

    4.   The sentencing judge failed to articulate any reasons for not giving the 40 per cent for which the appellant was eligible in relation to counts 8, 11 and 14.

16. It is convenient to address the fourth ground of appeal first. 

    Discount for guilty pleas

17. The appellant was originally charged, together with Mr Willscher, by Information dated 15 December 2014.  That was later replaced by a fresh Information dated 10 August 2015.  Counts 1, 2, 3, 5, 7 and 13 on the fresh Information replicated counts on the original Information.  Counts 8, 11 and 14 on the fresh Information did not replicate counts on the original Information, although there was some similarity between count 11 (kidnapping) and a false imprisonment charge which had been included on the original Information.

18. The appellant’s trial was scheduled to commence on 11 August 2015.  The Court was informed that day of the fresh Information, the appellant’s intention to plead guilty to some of the counts on that fresh Information, and that these pleas would be accepted in satisfaction of the fresh Information.  While this rendered the appellant’s trial unnecessary, Mr Willscher’s trial went ahead.

19. On 12 August 2015 the appellant was arraigned on the fresh Information and pleaded guilty to counts 1, 2, 3, 5, 7, 8, 11, 13 and 14.

20. By reason of the above sequence of events, the appellant was entitled to a reduction in his sentence of “up to 10%” in respect of counts 1, 2, 3, 5, 7 and 13 under s 10C(2)(f) of the Sentencing Act, and “up to 40%” in respect of counts 8, 11 and 14 under s 10C(2)(a) of the Sentencing Act.

21. The sentencing judge approached the sentence in this case by identifying a separate head sentence and discount for each group of offences attracting the same reduction, and then imposed a single overall sentence and non-parole period under s 18A of the Sentencing Act. His Honour reduced the appellant’s head sentence in respect of the first group of offences by 10 per cent (reducing the head sentence from 10 years to nine years imprisonment). No issue has been taken with this reduction on appeal. In relation to the second group of offences the sentencing judge reduced the head sentence from six years to four years, being a reduction of 33 per cent.

22. It is not entirely clear from the sentencing remarks whether the sentencing judge intended a reduction of 33 per cent, rather than the maximum entitlement of 40 per cent in respect of the second group of offences.  It was suggested on appeal that the sentencing judge may have intended to give the maximum discount of 40 per cent, but made an arithmetical error or slip. 

23. While this Court would not lightly assume that such a slip was made, there are a couple of matters which suggest that this is a possibility.  The first is his Honour’s reference in two places (quoted earlier in these reasons) to a discount of 40 per cent rather than “up to 40%”.  The suggestion was that his Honour was referring to the 40 per cent he intended to give, rather than the statutory entitlement of up to 40 per cent.  The second is the absence of any reference in his Honour’s reasons to any reason for awarding less than 40 per cent. 

24. A consideration of the transcript of the sentencing submissions does not resolve the ambiguity.  Submissions occurred over two separate hearings.  At the conclusion of the first hearing, and early in the second hearing, submissions appear to have proceeded on the premise that the appellant may receive the maximum discount, with the sentencing judge expressly noting decisions of this Court to the effect that anything less than close to the maximum needed to be justified.  The sentencing judge presumably had in mind decisions such as R v Dwyer[1] and R v Nguyen.[2]

    [1]    R v Dwyer (2015) 121 SASR 587 at [35].

    [2]    R v Nguyen [2015] SASCFC 40 at [19].

25. These exchanges, in combination with the failure of the sentencing judge to provide any justification in his sentencing remarks for a discount less than the maximum, might be said to support an inference that the sentencing judge intended to award the maximum discount of 40 per cent. On the other hand, an earlier exchange did advert to the possibility of a lesser reduction.  In particular, the appellant’s counsel acknowledged to the sentencing judge that because the kidnapping charge (count 11) resembled a false imprisonment charge that had appeared in the original Information there were grounds on which the sentencing judge might consider giving less than the maximum discount.  While counts 8 (aggravated assault) and 14 (assault) on the fresh Information were not a direct replacement of equivalent counts on the original Information, this Court was informed by counsel for the respondent that the laying of the fresh Information represented merely a further breaking down of the factual matters alleged by the Crown, rather than any change in what was being alleged.  The appellant’s counsel did not take issue with this and, indeed, acknowledged that there were grounds for awarding less than 40 per cent for the pleas of guilty for this second group of offences.

26. If the trial judge intended to award the maximum of 40 per cent discount for the second group of offences, then he made an arithmetical error in applying that discount.  Alternatively, if the trial judge intended to award a discount of 33 per cent, then he fell into error by not articulating his reasons for doing so.[3]  There may well be circumstances in which the reasons for departing from the maximum are so obvious, or so readily discernible from the transcript of sentencing submissions, that there is no error in failing to articulate them.  In the circumstances of this case, the combination of the uncertainty as to whether the sentencing judge intended to award less than the maximum of 40 per cent, and if he did, the uncertainty as to his reasons for doing so, make it appropriate for this Court to determine afresh the appropriate discount for the appellant’s guilty pleas in respect of the second group of offences. 

    [3]    R v McPhee [2014] SASCFC 107 at [46]; R v Wakefield (2015) 121 SASR 569 at [54]; R v Dwyer (2015) 121 SASR 587 at [34]-[35]; R v Nguyen [2015] SASCFC 40 at [17]-[19].

27. In determining afresh the appropriate discount, regard must be had to the considerations listed in s 10C(4) of the Sentencing Act. None of those considerations specifically address the situation where there is a fresh Information laid on the eve of trial, although it would probably come within the reference in s 10C(4)(c) to “the circumstances surrounding the plea”,[4] and would certainly come within the catch-all reference in the concluding words of the section to “any other factor or principle the Court thinks relevant”. 

    [4]    R v Bridgland [2016] SASCFC 28 at [50], [94].

28. I am conscious of the authorities in this Court emphasising the utilitarian purpose of s 10C and the need to ensure that defendants have some confidence in their expectations as to the discount they will receive in the event of a guilty plea.[5]  This will often result in defendants being awarded discounts at, or close to, the relevant maximum.  On the other hand, those authorities also recognise that the appropriate discount remains within the discretion of the Court.  There are also authorities recognising that when the entitlement to a discount up to a particular maximum (here, up to 40 per cent) results from a fresh Information being laid, the circumstances may provide a sound basis for awarding less than the maximum.[6] 

    [5]    R v McPhee [2014] SASCFC 107 at [46]; R v Dwyer (2015) 121 SASR 587 at [34]-[35].

    [6]    R v McPhee [2014] SASCFC 107 at [53].

29. While accepting that there remained some utilitarian benefit in the appellant’s pleas of guilty on the morning of trial in this case, it is relevant here that the fresh Information did not represent any significant alteration in the Crown’s position or allegations.  Given the similarity between the false imprisonment count and the kidnapping count which replaced it, and the fact that the latter was in fact a more serious charge, the appellant could have taken steps to plead, or otherwise enter into negotiations, in relation to that offence earlier than he apparently did and well ahead of trial.  The position is less clear in relation to the two assault charges added to the fresh Information, but given the absence of any suggestion of a material change (let alone concession) in the Crown’s position against the appellant, I consider that it was also appropriate that the appellant receive less than the maximum 40 per cent available in respect of these counts. 

30. In my view, it is appropriate that the head sentences for counts 8, 11 and 14 be reduced by 20 per cent rather than the maximum of 40 per cent. 

    The remaining appeal grounds

31. Having identified a process error in the sentencing judge’s approach to the applicable discount for the second group of offences, it is appropriate for this Court to exercise the entire sentencing discretion afresh.  That is so even though the process error was confined to the guilty plea discount in respect of one group of offences. It is thus not necessary to consider the remaining appeal grounds, albeit that the submissions put in support of these grounds have informed my approach on resentencing. 

    Resentencing

32. There were various ways in which the sentencing judge might have structured his approach to the ultimate sentence to be imposed in respect of the multiple offences committed by the appellant. While s 18A of the Sentencing Act would otherwise have permitted the sentencing judge to impose one sentence in respect of all offences, given the differing discounts applicable in respect of the two groups of offences, it was appropriate in light of R v Wakefield[7] that the sentencing judge at least break the offences into two groups and identify the notional head sentence and reduced head sentence applicable in respect of each group. 

    [7]    R v Wakefield (2015) 121 SASR 569 at [38]-[41].

33. However, the commonality of discounts is not of itself a good reason to group offences.  Grouping offences by reference to their common discounts risks distortion in the sentences that might otherwise be ascribed to individual offences or the offending as a whole.  For this reason, rather than adopt the sentencing judge’s two groups of offences, I propose to approach the matter by starting with the sentences for what I regard as the three most serious offences, namely the aggravated serious trespass (count 1), kidnapping of the male victim (count 11) and false imprisonment of the female victim (count 5).  I then propose to group the other offences around these three offences, providing for some concurrency where appropriate. 

1. While this approach does add some complexity to the sentencing process, it has the virtue of transparency as to the view I have taken in relation to the relative seriousness of the individual offences, and as to the application of concurrency.  In summary, while the precision of head sentences for each offence is not always necessary,[8] I consider it preferable in this case to approach the sentencing task in the more detailed and transparent manner I have proposed.

   [8]    R v Major (1998) 70 SASR 488 at 490; R v Symonds [1999] SASC 217 at [21]-[22]; R v Bagnato (2011) 112 SASR 39 at [32]-[42]; R v Copeland (No 2) (2010) 108 SASR 398 at [29].

2. Before indicating the sentences I would impose, I should state that I agree with the sentencing judge’s description of the offending.  It was premeditated, planned and violent.  It continued for an extended period of time.  It involved a terrifying ordeal for the victims.  As the sentencing judge explained, there was little to explain, let alone mitigate, the seriousness of the offending.  While the personal circumstances of the appellant (as outlined by the sentencing judge, and set out earlier in these reasons) were relevant, the need for general and personal deterrence warranted significant terms of imprisonment for each of the offences.

3. Starting with the aggravated serious criminal trespass (count 1), I consider a notional head sentence of three years imprisonment to be appropriate, bearing in mind that the various other offences, including the assaults, and also the kidnapping and false imprisonment (which the trespass was designed to facilitate) were separately charged.  I would reduce this by 10 per cent for the late plea of guilty, which rounded up[9] to the nearest month gives two years nine months imprisonment.  I would impose a sentence of six months imprisonment for the theft (count 7).  I would reduce this by 10 per cent giving a rounded sentence of five months two weeks imprisonment.  However, I would make the sentence for count 7 concurrent with the sentence for count 1, meaning that the overall sentence for this group of offending is two years nine months. 

   [9]    As the discount permitted under s 10C(2)(f) is “up to 10 per cent”, the period of imprisonment probably cannot be rounded down as this would result in a discount of in excess of 10 per cent: R v Deng [2015] SASCFC 176 at [52]-[53]; R v Palmer [2016] SASCFC 34 at [19].

4. As to the balance of offending, I propose to address, and group separately, the offending involving the male victim and the offending involving the female victim.

5. In relation to the kidnapping of the male victim (count 11) I regard this as the most serious of the appellant’s offences.  The appellant’s conduct in tying the victim’s ankles and wrists and then leaving him in the boot of the car which he drove for at least five hours involved a lengthy, dangerous and terrifying ordeal for the male victim.  I consider a sentence of six years imprisonment appropriate.  Reduced by 20 per cent for the guilty plea gives a sentence of four years 10 months imprisonment.

6. In relation to the three assaults against the male victim (counts 2, 8 and 14), while the circumstances of each varied, and two of them were aggravated, I regard each as being of approximately equal seriousness.  I would impose sentences of 10 months imprisonment in respect of each.  I would reduce these sentences to reflect the pleas of guilty, producing sentences of nine months for count 2 (after a 10 per cent discount) and eight months for each of counts 8 and 14 (after a 20 per cent discount).  However, I would make the sentences for these assaults concurrent with the sentence I would impose for the kidnapping offence, resulting in a total head sentence in respect of the offending involving the male victim of four years 10 months imprisonment.

7. Turning to the offences involving the female victim, the circumstances of her false imprisonment (count 5), while serious, were less horrific than those involved in the kidnapping of the male victim.  I would impose a sentence of four years for this offending, which after a reduction of 10 per cent for the guilty plea gives a sentence of three years eight months.  I would impose a sentence of six months (reduced by 10 per cent to five months two weeks) for the aggravated assault (count 3), given that the appellant threatened to taser the female victim, but did not in fact taser her.  The aggravated blackmail (count 13) involved further serious offending in respect of the female victim.  For this offence, I would impose a sentence of two years, reduced by 10 per cent for the guilty plea to one year 10 months.  Again, as with the appellant’s offending involving the male victim, I would order that the sentences for the offending against the female victim be served concurrently, meaning that the overall sentence for this group of offending is three years eight months.

8. In arriving at the total sentences for each of the three groups of offences I have considered it appropriate to make the sentences for each offence within those groups concurrent.  This approach reflects the fact that while the offending took place over a long period of time, at different locations, and involved two victims, nevertheless there was a connection between all of the offending.  The full extent of the offending was probably not planned or premeditated, but significant aspects of it were.  It is relevant also that the entirety of the offending appears to have been directed towards an objective of securing repayment of the alleged drug debt.  And the offending was continuous throughout the relevant period of time.

9. Bearing all of the above in my mind, I consider it appropriate to make the sentences I have imposed concurrent within the three groups I have identified, but cumulative between those groups.  Combining the head sentences for the three groups of offending I have indentified, I would impose an overall head sentence of 11 years and three months.  In my view this approach and outcome appropriately reflects the overall criminality of the appellant’s offending.  There is no need or occasion to make any reduction on account of totality.

10. Turning to the non-parole period, having regard to the nature of the offending, and the factors personal to the appellant outlined earlier in these reasons, I would fix a non-parole period of six years six months.

11. As the sentencing judge did, I would backdate the sentence to 11 May 2014, when the appellant was taken into custody. 

    Conclusion

12. I would thus allow the appeal.  I would set aside the sentence imposed by the sentencing judge.  I would sentence the appellant to a head sentence of 11 years and three months imprisonment, and fix a non-parole period of six years six months.  I would backdate the sentence to 11 May 2014.