R v Tancock (No 2)

[2015] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TANCOCK (No 2)

[2015] SASCFC 22

Judgment of The Court of Criminal Appeal

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

10 March 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY

Re-sentencing pursuant to s 354(1) of the Criminal Law Consolidation Act 1935.

Criminal Law Consolidation Act 1935 (SA) s 354(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Tancock [2014] SASCFC 110, considered.

R v TANCOCK (No 2)
[2015] SASCFC 22

Court of Criminal Appeal:   Vanstone, Blue and Nicholson JJ

1. THE COURT.       These reasons are to be read in conjunction with the principal judgment in this matter.[1]  In that judgment, this Court unanimously dismissed the appellant’s appeal against convictions for two counts of aggravated assault causing harm[2] and three counts of aggravated indecent assault[3] but, by majority,[4] allowed the appeal against conviction for a third count of aggravated assault causing harm.[5]

   [1]    R v Tancock [2014] SASCFC 110.

   [2]    Counts 1 and 3 on the information.

   [3]    Counts 2, 4 and 5 on the information.

   [4]    Blue and Nicholson JJ, Vanstone J in dissent.

   [5]    Count 6 on the information.

2. Between the hearing of the appeal against conviction and the delivery of judgment, the appellant was sentenced in the District Court utilising section 18A of the Criminal Law (Sentencing) Act 1988 (SA) on the basis of having been convicted of all six counts. On the delivery of judgment, the matter was remitted to the sentencing Judge for further consideration with respect to sentence, bearing in mind that, as a result of the appeal, the appellant fell to be sentenced for only five of the six counts. No appeal against sentence was then or has thereafter been filed.

3. Reconsideration of the sentence by the Judge did not proceed. Rather, his Honour’s and this Court’s attention was drawn to subsection 354(1) of the Criminal Law Consolidation Act 1935.  That subsection provides:

   (1)If it appears to the Full Court that an appellant, although not properly convicted on some count or part of the information, has been properly convicted on some other count or part of the information, the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefore as it thinks proper and as may be warranted in law by the verdict on the count or part of the information on which the Court considers that the appellant has been properly convicted.

   Further submissions were invited from the parties as to the procedure to be adopted.  It is agreed that this Court should proceed to resentence the appellant on the basis of the relevant sentencing materials that were before the Judge.  Neither party wishes to make further submissions.

4. We have considered the materials that were before the Judge.  We have also considered his Honour’s sentencing remarks and approach to sentencing for each of the counts that was before him.  However, we are to sentence afresh in the exercise of our own discretion.  We are not bound to adopt his Honour’s approach.  Nor are we entitled to adopt it uncritically.

5. The Judge imposed the one penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) but also provided indicative sentences for each count. For count 1 (aggravated assault causing harm) his Honour indicated a sentence of nine months imprisonment, for count 3 (aggravated assault causing harm) and count 5 (aggravated indecent assault) a sentence of six months each and for counts 2 and 4 (aggravated indecent assaults) and 6 (aggravated assault causing harm) a sentence of 12 months each.[6]

   [6]    The Judge separated the various counts into these three groups, in part, to take account of different applicable maximum penalties. 

6. The Judge observed that he had no capacity to reduce these notional sentences on the basis of contrition or any desire to facilitate the course of justice.  His Honour, in the first instance, regarded all of the notional sentences as operating cumulatively leading to a total starting point of four years and nine months.

7. However, his Honour noted that some partial concurrency or an application of the principle of totality was called for in the circumstances. According to the Judge, his “appraisal of the overall course of... criminal conduct [justified] a reduction in the head sentence to three years imprisonment” which he then imposed pursuant to section 18A of the Sentencing Act.  The Judge set a non-parole period of two years.  He backdated both the head sentence and the non-parole period to commence on 25 July 2014 when the appellant was taken into custody.

8. We have reviewed the materials before the Judge but bearing in mind the five offences for which the appellant now stands convicted. Exercising the discretion available under section 18A and making some allowance for partial concurrency, we impose one penalty, being a sentence of two years and six months imprisonment with a non-parole period of one year and 10 months.  Both the head sentence and the non-parole period are to commence from 25 July 2014.