R v Smith - [2011] SASCFC 124

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMITH
[2011] SASCFC 124
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Blue)
2 November 2011
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - ROLE OF GUILTY PLEA OR DEPOSITIONS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appellant convicted on his plea to two counts of theft and one count of assault - he was sentenced to one term of imprisonment of six months for the three offences - where in arriving at that sentence, there had been a reduction of 12 months for time spent in custody, but no reduction on account of contrition or remorse or for the guilty pleas - where appellant's conduct also breached a suspended sentence bond - where the sentencing Judge revoked the order for suspension - whether the Judge erred by not giving credit to the appellant for his plea of guilty.
Held: Appeal allowed - the Judge failed to have regard to the plea of guilty - in particular, the Judge failed to have regard to the appellant's willingness to assist the administration of justice - appellant resentenced - reduction of three months on account of the plea of guilty and for contrition and remorse.
Correctional Services Act 1982 (SA) s 75; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 31(2); Criminal Law Consolidation Act 1935 (SA) s 20(3), s 134, referred to.
Cameron v The Queen (2002) 209 CLR 339; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; Markarian v The Queen (2005) 228 CLR 357; R v Wilson (2010) 106 SASR 502, considered.

R v SMITH
[2011] SASCFC 124
Court of Criminal Appeal: Gray, Peek and Blue JJ
GRAY J:

This is an appeal against sentence.
Introduction
Daniel Graham Smith, the defendant and appellant, was convicted in the District Court on his plea of guilty to two counts of theft[1] and one count of assault.[2] He was sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one term of imprisonment of six months for the three offences. In arriving at that sentence, a reduction of 12 months was made for time spent in custody. No reduction was made on account of contrition or remorse or for the plea of guilty.
[1] Contrary to section 134 of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA).
The defendant’s offending occurred on 22 April 2010. The defendant approached a vehicle that was parked at a petrol station close to the Adelaide airport. He snatched a bag from a woman who was sitting in the vehicle. The bag contained a mobile telephone, credit cards and a wallet. The defendant then made his way to a parking area at the airport and approached another woman who had just entered a hire car. He opened the driver’s side door and demanded that he be driven from the area. The woman refused. The defendant then grabbed her by the shoulder and attempted to drag her from the car. At about the same time, he took the keys from the ignition of the hire car. The police arrived at the scene and arrested the defendant. He behaved in an agitated and aggressive manner until subdued by capsicum spray. He was assessed by the police when taken into custody as being moderately to highly affected by alcohol or other drugs. A note was made that his behaviour appeared bizarre.
The defendant was initially charged in the Magistrates Court with one count of robbery and with one count of attempted robbery. On 13 September 2010, he was arraigned in the District Court on those two counts. At that time, he pleaded not guilty. On 15 November 2010, a fresh information was presented to the District Court alleging one count of theft of a handbag with contents, one count of theft of a set of car keys and one count of assault. The defendant pleaded guilty to all three counts on this occasion.
On 14 January 2011, the matter was listed for sentencing submissions before a Judge of the District Court. It was submitted to the Judge that the defendant was intoxicated at the time of the offending and that the intoxication was not self-induced. It was accepted that there was no intoxication defence, but it was submitted that the defendant’s intoxication impacted to reduce his criminal responsibility. The Director of Public Prosecutions advised the Court that he accepted that the defendant should be sentenced on this basis. The Judge declined to accept the asserted factual basis and the matter was listed on 22 February 2011 for evidence to be called in respect of the assertion that the defendant’s intoxication was not self-induced. Just prior to the conclusion of the hearing on 14 January 2011, a letter of apology from the defendant was read to one of the victims who was present in Court.
On 22 February 2011, the matter did not proceed. On 29 March 2011, the defendant gave evidence. In April 2011, there were two directions hearings before a different Judge of the District Court. At the second of those directions hearings, the matter was listed for a disputed facts hearing on 20 May 2011 before yet another District Court Judge. The disputed facts hearing was to determine whether the defendant’s intoxication was self-induced. Following the hearing of evidence, the Judge delivered a ruling rejecting the defendant’s assertion that his intoxication was not self-induced. Sentencing submissions were ultimately made on 8 July 2011, with the defendant being sentenced on 21 July 2011.
The sentencing Judge accepted the defendant’s assertion that he had consumed alcohol and drugs the evening before and probably on the day of the offending. The defendant claimed that his state of intoxication was the result of a mistaken ingestion of drugs. This claim was rejected by the Judge. In the course of the Judge’s sentencing remarks, he observed:
… I make no reduction in the sentence for your plea of guilty because I think your attempt to avoid responsibility for your actions indicated a lack of contrition, a lack of remorse. …
The reference to “attempt to avoid responsibility” was a reference to the assertion that there had been an involuntary ingestion of drugs.
The sentencing Judge reached the conclusion that the defendant’s conduct was a breach of a suspended sentence bond and, having regard to the seriousness of the breach, the order for suspension was revoked. As a consequence, the defendant was liable to serve that sentence of 22 months imprisonment. The defendant’s conduct also activated an unexpired period of parole of one year, two months and 28 days.
In accordance with the statutory provisions,[3] the period of unexpired parole was to be served immediately; that is, on the day of sentencing, 21 July 2011. The sentence of six months imprisonment was to commence on the conclusion of the unexpired period of parole. The revoked suspended sentence was directed to be served cumulatively on the sentence of six months. As a consequence, the defendant faced a total period of imprisonment of three years, six months and 28 days. The Judge fixed a non-parole period with respect to the entire period of imprisonment of two years. Accordingly, the defendant will be eligible for parole on 21 July 2013.
[3] Correctional Services Act 1982 (SA) section 75; Criminal Law (Sentencing) Act 1988 (SA) section 31(2).
The Appeal
It was complained on appeal that the sentencing Judge had erred by not giving credit to the defendant for his plea of guilty.
On the appeal, the defendant submitted that the sentencing Judge failed to have regard to the fact that the defendant’s plea of guilty was a factor to be brought to account as demonstrating willingness on the part of the defendant to facilitate the course of justice, quite apart from any relevance it might have on the question of contrition and remorse. It was claimed to be apparent on the face of the Judge’s remarks that he had not had regard to this consideration.
It was further submitted by the defendant that there was evidence of contrition and remorse on his part. He pointed to the apology given in Court in the presence of one of the victims and he also referred generally to the psychological report tendered to the sentencing Judge. My review of that report allows the conclusion that the defendant has been a long term drug user and that his criminal behaviour appears to be related to the consequences of that drug use. The report provided some support for the defendant’s claim of contrition and remorse.
The Director submitted that the sentencing Judge was correct to reject the assertion of contrition and remorse and further that it was open, as a matter of discretion, for the Judge to make no reduction at all on account of the plea of guilty. It was accepted that the authorities establish that as a matter of discretion, the Judge could make a reduction for a willingness to assist the administration of justice.
The High Court in Cameron[4] discussed the relevance of a plea of guilty in the sentencing process. Gaudron, Gummow and Callinan JJ observed:[5]
[4]    Cameron v The Queen (2002) 209 CLR 339.
[5]    Cameron v The Queen (2002) 209 CLR 339, [11], [13]-[14].
It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen it was said:
"a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case."
It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.
…
It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.
Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.
[Footnote omitted. Emphasis added.]
Kirby J commented as follows:[6]
The discount for a plea of guilty to the charge brought against the accused is to be distinguished from a discount for a spontaneous and immediate expression of remorse conducive to reform and for immediate co-operation with investigating police. The latter has always been treated as deserving of such recognition in the sentencing of an accused. In many cases such feelings of repentance will continue and manifest themselves in an early plea of guilty that is adhered to at the trial. Obviously, the timing of any plea of guilty has a large bearing on the credit that should be given to the prisoner. A plea of guilty at the last moment (as on the day set down for the trial) will ordinarily attract a smaller discount in sentence than one that is entered at the first reasonable opportunity. But even a belated plea will normally attract a discount.
[Footnotes omitted. Emphasis added.]
[6]    Cameron v The Queen (2002) 209 CLR 339, [65].
In my view, the Judge failed to have adequate regard to the plea of guilty. His sentencing remarks indicate that he only considered the plea as relevant to the issue of contrition and remorse. As the extracts from Cameron indicate, quite apart from contrition and remorse, a plea of guilty is evidence of a willingness to assist the administration of justice.
In the present proceeding, the plea of guilty was made at the time of the filing of the fresh information. That information contained less serious charges than that which had been earlier advanced. The defendant’s plea has assisted the administration of justice. As a consequence of the plea, there has been no need for a trial to be conducted. It is relevant, however, to note that the circumstances of the offending and the defendant’s arrest soon after would suggest that the prosecution case was a strong one.
The letter of apology, earlier referred to, was read to the Court in the presence of the victim at an early stage of the proceedings and before the sentencing Judge was seized of the matter. It was common ground that the letter of apology was not brought to the sentencing Judge’s attention and although it was referred to in the transcript and its contents were recorded in the transcript, it appears that the sentencing Judge was unaware of the fact of the apology or its terms. The letter of apology, as read onto the transcript, is in the following terms:
Dear Mrs M, I am writing to you to sincerely apologise to you for the stress I have caused you and your family. I am sorry for how rude and nasty I was by taking your handbag. I have no right and honestly can’t believe that happened. I have been raised better than that and if my mother was still alive I would be in big trouble. It is definitely out of my character to do such a thing. I have never taken anyone’s personal property or belongings like that before. I have been raised better than that and taught respect to do something like that to anybody especially a woman I feel truly ashamed and sincerely sorry for my action. I have no recollection or very little from that day but remember waking up in a police station. It was unusual not to remember what happened that day as I never took any drugs (willingly) and wanted … to know what happened. My lawyer and I asked for a urinalysis test to see what was in my system as I fell my drink may have been spiked since I don’t remember doing what I did. It is no excuse for what I have done but I really wanted you to know why I did such a thing and what was in my system. But unfortunately the [urinalysis] didn’t take place and I still don’t know. I have never robbed anyone like that in the past, especially a woman, and again I am truly deeply sincerely sorry. PS, I don’t expect you to accept my apology but I wanted to apologise thank you Damien.
Counsel for the defendant on the appeal informed the Court that the defendant had prepared a letter of apology to the other victim, but this apparently through oversight was not produced to the Court. In the course of the Judge’s sentencing remarks, he makes reference to a letter written by the defendant to the Judge. In the letter to the Judge, the defendant again expresses his sorrow and remorse for his conduct.
As discussed above, in my view, the Judge failed to have regard to a relevant consideration when sentencing. In particular, the Judge failed to bring to account the willingness of the defendant to assist the administration of justice. Further, some allowance should have been made for contrition and remorse. Accordingly, the Judge’s sentencing discretion miscarried.[7]
[7] House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; Markarian v The Queen (2005) 228 CLR 357.
The Director submitted that even if error were to be established, this Court should not interfere as the sentence imposed was merciful and that even if regard is had to the guilty plea, the sentence imposed was still the appropriate sentence. I do not agree. The amended information alleged matters that would in the ordinary course be dealt with in the Magistrates Court. The charges finally presented were materially less serious than the charges as initially laid. In the circumstances, I consider that the defendant should be resentenced.
Resentencing
As the defendant is to be resentenced, it is appropriate for this Court to have regard to the letter of apology tendered before the Court as well as the expressions of contrition and remorse set out in the defendant’s letter to the Judge. Further, the Court is now aware that the defendant apologised to the other victim in similar terms to the letter of apology already tendered.
Having regard to all of the circumstances, I consider that a reduction of three months from the otherwise head sentence should be made on account of the plea of guilty and for contrition and remorse. In this respect, the allowance for contrition and remorse is modest having regard to the Judge’s conclusions concerning the defendant’s inappropriate attempt to mitigate his criminal responsibility. No complaint was advanced as to any other aspect of the sentence. In my view, all other aspects of the sentencing process were open to the Judge and were appropriate in all of the circumstances.
In these circumstances, I would allow the appeal. I would set aside the sentence imposed in respect of the offending the subject of the appeal and in lieu of the starting head sentence of 18 months, I would impose a starting head sentence of 15 months. This is subject to a further reduction of 12 months on account of time spent in custody.[8] The resulting head sentence is three months imprisonment. This sentence is to commence at the expiration of the unexpired period of parole of one year, two months and 28 days. The revoked suspended sentence of 22 months imprisonment is to be cumulative on the three month sentence. In respect of the total period of three years, three months and 28 days, I would fix a non-parole period of 21 months. The sentences should take effect from 21 July 2011.
[8] R v Wilson (2010) 106 SASR 502, [1] (Doyle CJ), [16]-[27] (Gray J), [44]-[48] (Vanstone J).
PEEK J. I would allow the appeal. I agree with the reasons of Gray J.
BLUE J. I would allow the appeal. I agree with the reasons of, and orders proposed by, Gray J.