R v Stansborough

[2013] SASCFC 49

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v STANSBOROUGH

[2013] SASCFC 49

Judgment of The Court of Criminal Appeal

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

6 June 2013

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES

Appellant pleaded guilty to the offence of aggravated intentionally causing harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) - the aggravating circumstance of the offence was that the defendant used a knife to commit the offence - he was sentenced to four years and six months' imprisonnment with a non-parole period of two years and six months' imprisonment - whether the sentence is manifestly excessive.

Held: Dismissing the appeal - comparisons between sentences in other cases is of limited assistance, the circumstances of each case vary considerably - the function of the sentencing court is to arrive at an appropriate sentence having regard to s 10 of the Criminal Law (Sentencing) Act 1988 (SA) and all the relevant circumstances - general and personal deterrence must play a significant role in the sentencing for offences of violence committed in public places - especially where weapons such as knives are used - the sentence was well within the appropriate range - it was not unreasonable or unjust.

Criminal Law Consolidation Act 1935 (SA) s 24(1), s 353(5); Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
House v King (1936) 55 CLR 499; R v Harkin (2011) 109 SASR 334; R v Chalmers (2012) 115 SASR 150; R v Nemer (2003) 87 SASR 168; R v E, AD (2005) 93 SASR 20, considered.

R v STANSBOROUGH
[2013] SASCFC 49

Court of Criminal Appeal:       Sulan, Peek and Nicholson JJ

1. SULAN J: This is an appeal against sentence. The defendant and appellant, Jarrod Stansborough, pleaded guilty to the offence of aggravated intentionally causing harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA). The aggravating circumstance of the offence was that the defendant used a knife to commit the offence. He was sentenced to four years and six months’ imprisonment with a non-parole period of two years and six months.

2. The defendant appeals on the ground that the sentence imposed is manifestly excessive.

   Background

3. On 21 January 2012, the defendant attended the Gungellan Hotel at Freeling to pick up his girlfriend, who was working there.  She was due to finish at midnight, but was required to work on until 2 am.  The defendant decided to wait at the bar for his girlfriend to finish work.  He was approached by two men, Mr Ashton, and the victim of the offence, Mr Eynon.  The two men approached the defendant and confronted him in relation to an earlier incident, not on that night, in which they alleged the defendant had threatened Mr Ashton and his father with a knife.  A heated exchanged ensued.  The defendant left the premises.

4. The defendant returned to the hotel at 2 am to pick up his girlfriend.  The defendant, who was a chef by occupation, had a large knife in his car.  He brought it with him into the hotel, concealed in his front pocket.  He decided to wait at the bar whilst his girlfriend completed her work.  The defendant was again approached by Mr Eynon.  A further altercation took place.  Following a short argument, the defendant backed away and then suddenly produced the knife and lunged towards Mr Eynon, pushing past two females who were standing between the men.  Mr Eynon and Mr Ashton reached for the knife and the defendant was forced backwards.  The defendant and Mr Eynon wrestled.  The defendant broke free and slashed at Mr Eynon with the knife, wounding him.

5. The defendant fled from the hotel with the bloodied knife in his hand, pushing aside a hotel employee and a patron.  He phoned 000 and arranged for an ambulance to attend the hotel.  He drove away.  He was arrested on 25 January 2013. 

6. Mr Eynon was taken by ambulance to the Royal Adelaide Hospital.  As a result of the attack, his left ear was almost severed.  He suffered a knife wound extending vertically down the left side of his neck.  There were abrasions on his left arm.  The partially-amputated ear was stitched back into position.  The vertical neck wound was also stitched.

7. Mr Eynon not only suffered from the physical injuries he sustained, but he also has been deeply affected by his experience.  In his victim impact statement, he describes in detail the traumatic effect his injuries have had upon his girlfriend, his mother and other members of his family.

   Personal circumstances

8. The defendant was born in 1981 and grew up in the Barossa Valley.  He attended Kapunda High School until Year 10.  After leaving school, he worked as a labourer and farm hand before finding work as a chef.  He then completed a three-year apprenticeship through TAFE at a restaurant in the Barossa Valley.  He worked as a chef in a resort group before becoming the head chef at a restaurant in Tanunda.  He worked in Tanunda for three years.  References provided by the manager and another staff member of the restaurant demonstrate that he is a reliable and trustworthy employee, and is well regarded in his social group.  The restaurant manager states that, should there be an opportunity to do so, he would re-hire the defendant in the future.

9. The offence was committed whilst the defendant was on bail for one offence of assault causing harm, which was committed on 21 May 2011.  On 27 July 2012, he was sentenced to six months’ imprisonment.  On a further offence of assault, he was convicted without penalty.  The defendant has a number of other previous convictions for offences involving violence.  The first was in 1997 when the defendant was a juvenile.  In 2002, he was convicted of assault occasioning actual bodily harm for which he received a suspended sentence bond.

10. The defendant has the continued support of his parents, two sisters and his girlfriend.

11. The defendant acknowledges that he has anger management issues.  Prior to his imprisonment for the earlier offence, he had three sessions with a psychologist and a psychiatrist to discuss both his depression and anger management.  While no psychiatric reports were tendered to the sentencing Court, his counsel submitted that, apart from depression, the defendant does not have any other major mental health issues or drug or alcohol problems.  It is clear that the defendant requires ongoing counselling for his anger management problems.

    Sentencing remarks

12. The sentencing Judge accepted that the defendant was remorseful and that he acknowledged his anger management issues. The Judge then stated:

    This is a serious and frightening offence. The maximum penalty for it is imprisonment for 13 years.

    It is an aggravating feature that you used a knife. It is an evil weapon.

    This type of a violent assault in places like hotels is prevalent, therefore general deterrence is an important sentencing consideration.  Also your criminal record demonstrates that there is a need to personally deter you. You have serious anger management problems, which you need to give urgent attention to, before you kill somebody.

    This is a bad example of this offence.

13. The Judge considered the impact which the offence had on the victim:

    The event was frightening and has had a traumatic impact on those involved. It’s particularly had a devastating impact on the victim. His girlfriend was at the Hotel at the time and she travelled to the hospital in the ambulance with him. She was also traumatised. Shattered by the experience, the victim and his girlfriend have moved away from South Australia to try and rebuild their lives and their confidence.

    The victim was away from work for three to four months because he couldn’t face up to going with his obviously mended ear. He no longer drinks at hotels and avoids crowds. To use the phrase from his victim impact statement, he is ‘continually watching over his shoulder’.

14. In determining the sentence to be imposed, the Judge remarked:

    The sentence of the Court is that you be imprisoned for four-and-a-half years. If it were not for your plea of guilty, it would have been six years. I fix a non-parole period of two-and-a-half years. The sentence and the non-parole period is to commence on 5 February 2013.

    The appeal

15. The defendant appeals on the ground that the sentence imposed is manifestly excessive. Counsel for the defendant does not point to any specific error in the sentencing process. Counsel submits that the starting point of six years’ imprisonment is too high and that, as a consequence, the sentencing process has miscarried.

16. In House v King, the majority of the High Court (Dixon, Evatt and McTiernan JJ) discussed the principle justifying interference in such cases:[1]

    It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

    Counsel submits that, having regard to the circumstances of the defendant and the offending, a starting point of six years is unreasonable, or plainly unjust.

    [1] (1936) 55 CLR 499. See also; R v Horstmann [2010] SASC 103; R v Jongewaard [2009] SASC 346.

17. Counsel for the defendant relies on two decisions of R v Harkin,[2] and R v Chalmers.[3]  Counsel has sought to draw a comparison between the sentence in those cases and the sentence imposed in this case.

    [2] (2011) 109 SASR 334.

    [3] (2012) 115 SASR 150.

18. This Court has previously commented that comparisons between sentences in other cases is of limited assistance. The circumstances of each case vary considerably.  Even where the Court of Criminal Appeal gives guidance in respect of a certain category of offending, it does not follow that future sentences should be determined by comparing the facts of the later case with the former.  Sentences for certain offences may fall within a general range to be borne in mind when determining a sentence for a similar offence.[4] 

    [4]    R v E, AD (2005) 93 SASR 20 at 27.

19. The personal position of a defendant is different in every case. This Court has emphasised that the function of a sentencing court is to arrive an appropriate sentence, having regard to s 10 of the Criminal Law (Sentencing) Act 1988 (SA), and all the relevant circumstances. In R v Nemer, Doyle CJ said:[5]

    The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.

    In different cases these considerations will operate in different ways and to differing degrees.  As has been said, these considerations are no more than guideposts to the appropriate sentence, and sometimes they point in different directions:  Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.

    That is why sentencing an offender is not a precise process.  There is no sentence that is exactly right in the given case.  In any particular case the most that can usually be said is that an appropriate sentence will be within a certain range.  Any sentence within that range is appropriate.  Different judges, presented with the one case, are likely to arrive at different results within that range.  The different results do not indicate that an error has been made, as long as they are within the acceptable range.  They reflect the nature of the sentencing process.

    This may be disconcerting to some.  But it is important that the public understand it.

    [5] (2003) 87 SASR 168 at [6]-[9]; see also R v Payne (2004) 89 SASR 49.

20. In the case of causing harm with intent to cause harm, the circumstances in which the offence is committed can vary markedly from case to case.  There is no standard penalty applicable to the offence.

21. It is unnecessary to elaborate in detail the differences between the defendant’s circumstances and those in Harkin and Chalmers.  I simply observe that, in Harkin, the defendants were first offenders.  It was an appeal by the Director of Public Prosecutions.  The main issue argued was whether the discretion to suspend the sentences had miscarried.  The Director submitted that the head sentences were at the lower end of the appropriate range in the circumstances.  He argued that suspension of the sentences was an error.  In that case, the Court did not interfere with the head sentences.

22. In Chalmers, the appeal was an appeal by Chalmers against the severity of the sentence.  There is no power in the Court to increase the sentence.[6]  The issue in the case was whether the sentence should have been suspended.  In Harkin’s and Chalmer’s case, the personal circumstances of the defendants are distinguishable from those of the defendant.  In Harkin and Chalmers, the defendants had no prior history of violence. 

    [6]    Criminal Law Consolidation Act 1935 (SA), s 353(5).

23. The offending in this case was extremely serious.  The defendant, having been involved in a dispute with the victim earlier that evening, returned with a knife.  It is accepted that he had a legitimate reason to return to pick up his girlfriend.  Nevertheless, it was unnecessary for him to be at the bar where he was aware of the near vicinity of the victim.

24. When the argument with the victim re-commenced, he had ample opportunity to walk away from the confrontation.  He chose to move backwards, take the knife from his pocket and move aggressively towards the victim.  The situation was avoidable.

25. The defendant chose to engage the victim.  He chose to introduce the knife.  The use of weapons, in particular a knife, places the offending in the more serious class of this type of offence.  The courts must impose penalties which reflect the serious nature of this offending.  Further, the defendant has a history of personal violence to others.  At the time, he was on bail in respect of an earlier assault.  It is clear that he had little insight into his earlier conduct.  The Judge was required to pass a sentence which reflected the seriousness of conduct.  The sentence had to act both as a deterrent to the defendant and to others who may be inclined to act in a similar fashion.

26. The maximum penalty for the offence is imprisonment for 13 years.  Maximum penalties provide an indication of how serious the legislature regards the offending.  General and personal deterrence must play a significant role in sentencing for offences of violence committed in public places, especially where weapons such as knives are used.

    Conclusion

27. The sentence imposed on the defendant was well within the appropriate range.  It was not unreasonable or unjust.

28. I would dismiss the appeal.

29. PEEK J:   I would dismiss the appeal.  I agree with the reasons of Sulan J.

30. NICHOLSON J:   I agree that the appeal should be dismissed for the reasons given by Sulan J.