R v Taylor - [2016] SASCFC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TAYLOR
[2016] SASCFC 54
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)
19 May 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant was sentenced for offences of aggravated serious criminal trespass in a place of residence and theft. The offending breached a three month suspended sentence bond. Prior to sentence, the appellant had spent two months and five days in custody and three years and six months on home detention bail. The Judge allowed a total credit of three months. A final sentence of four years imprisonment was imposed with a 20 month non-parole period.
Whether the Judge failed to give appropriate and adequate weight for time spent on home detention bail - whether the final sentence was manifestly excessive.
Held per Lovell J (Nicholson and Parker JJ agreeing) (allowing the appeal):
1.    In the circumstances of this case, the Judge was required to give far more weight than he did to the time spent on home detention bail.
2.    The amount of credit allowed for time on home detention bail has led to a sentence which is manifestly excessive.
3.    The original sentence is set aside. The appellant is to be resentenced.
Criminal Law Consolidation Act 1935 (SA) s 269; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
House v The King (1936) 55 CLR 499; R v Horstmann [2010] SASC 103, applied.
R v Nguyen [2004] SASC 405; R v Malesevic [1999] SASC 321; Allen v R [1999] SASC 346, discussed.
R v Franceschini [2015] SASCFC 116; R v Lutze [2014] SASCFC 134, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"manifestly excessive"

R v TAYLOR
[2016] SASCFC 54
Court of Criminal Appeal: Nicholson, Parker and Lovell JJ

NICHOLSON J: I agree with the orders proposed by Lovell J for the reasons he has given.
PARKER J: I would uphold the appeal. I agree with the reasons of Lovell J and the orders he proposes.
LOVELL J.
This appeal raises the issue of a sentencing judge’s discretion to allow a deduction from a sentence for time spent on home detention bail. At the time of sentencing the appellant had spent approximately three and a half years on home detention bail. The sentencing Judge allowed 25 days credit for the time on home detention bail.
The appellant complains that the sentence and non-parole period are manifestly excessive as the Judge failed to give appropriate and adequate weight for time spent on home detention bail.
Background
The appellant was sentenced following a trial in the Supreme Court for offences of aggravated serious criminal trespass in a place of residence and theft. Along with three others, the appellant broke into the victim’s home in the early hours of 14 March 2012 in order to steal cannabis. They stole a number of other items. At the time the appellant was on a three month suspended sentence bond.
The learned sentencing Judge found the breach of the suspended sentence bond proved and ordered that the appellant serve the three months imprisonment. In relation to the offences of aggravated serious criminal trespass in a place of residence and theft he imposed a sentence of four years imprisonment. That sentence of four years imprisonment was to be served cumulatively upon the expiration of the three months sentence he imposed earlier. The sentence of four years and three months imprisonment was reduced by three months to take into account time spent in custody and time on home detention bail.
Initially the sentencing Judge imposed a non-parole period of 17 months which was to commence at the expiration of the three months sentence. It is clear that his Honour intended there to be a 20 month non-parole period on the whole sentence.
Any confusion about the structure of the sentence was resolved by the Report of Prisoner Tried where it is clear that his Honour imposed an overall sentence of four years imprisonment commencing on 29 January 2016 with a non-parole period of 20 months commencing on the same date.
Background of the Appellant
By way of background the appellant was brought up in deprived circumstances. He has a good relationship with his father who clearly did his best in difficult circumstances. His mother committed suicide when he was 16 years of age. Prior to the offending the subject of this appeal the appellant had never had paid employment.
The appellant is currently 24 years old. His father is Greek and his mother Aboriginal. His mother always had a severe problem with alcohol and after his parents separated he stayed with his father. The appellant told Mr Broomhall, a psychologist, that his mother was frequently drunk, seemed very depressed, and he found it very difficult to spend time with her when she was intoxicated. The appellant said his mother had a lot of family issues including suicide, depression, alcohol and substance abuse.
The appellant had a good relationship with his father but they did not always have a house in which to live. The two of them lived out of a car for approximately seven years. He had trouble at school and developed problems with alcohol and cannabis. He also developed a problem with methamphetamine.
The only work the appellant had done prior to sentencing was six months with “BoysTown”, refurbishing SA Housing Trust houses whilst on home detention. I note that whilst under home detention the appellant had moved out of the area where he was living at the time of the offending and did not associate with his previous peer group. Further, he had not committed any offences for the time he was on home detention bail.
The sentencing Judge had before him two reports from a psychologist, Mr Broomhall. Mr Broomhall had been asked to assess him and comment on whether the appellant was mentally fit to stand trial and also whether at the time of the offending he was mentally competent to commit the offences.
Relevant to the sentencing proceedings Mr Broomhall was of the opinion that the appellant suffered a mild intellectual disability as well as a social anxiety disorder. He had a reading age equivalent to an eight year old and a verbal IQ in the extremely low range of somewhere between 59 and 70; these findings were consistent with the appellant’s difficulties at school.
The appellant is currently in a stable relationship and has been so for approximately six years. He has three children aged four, three and one, one of whom has severe learning difficulties.
Prior to trial the appellant spent approximately three years and six months on home detention bail. After the jury returned the guilty verdict on 26 November 2015 the sentencing Judge continued the appellant’s bail. The appellant became so worried about incarceration that he cut-off his home detention bracelet and absconded. A warrant was issued for his arrest on 10 December 2015 and he was arrested on 16 December 2015. He remained in custody for a period of 44 days until he was sentenced on 29 January 2016. The sentencing Judge correctly had no regard to that matter when imposing sentence.
Sentencing Judge’s remarks
In relation to the question of time in custody and home detention bail the sentencing Judge stated:[1]
I am told you have been in custody for 23 days, plus the time from 17 December until you were arrested again, and that’s two months and five days.
Also, because of the inordinate amount of time between original arrest and trial you have been on home detention bail for something like three and a half years. Taking home detention bail into account in sentencing is something which is very much at the discretion of the sentencing Judge. In this case it is a factor that I will take into account because of that inordinate long period of time and I will make some allowance for it.
In all of the circumstance I will reduce both the head sentence and the non-parole period by a period of three months to take into account those matters of time spent in custody and the time spent on home detention bail.
[My underlining]
[1] Appeal Book pp 93-94.
The Judge referred to the time on home detention as reflecting an “inordinate amount of time between original arrest and trial”. When imposing sentence, to reflect the inordinate amount of time, he allowed 25 days credit.
A court is not obliged to make a reduction on account of time spent on home detention although it is a factor that can be taken into account.[2] The Judge correctly stated that there is no mathematical formula for taking into account time on home detention bail nor any authority which mandates a specific deduction. Much will depend on the circumstances of the matter.
[2] R v Malesevic [1999] SASC 321; Allen v R [1999] SASC 346; R v Nguyen [2004] SASC 405.
As was stated in R v Franceschini:[3]
At common law, a sentencing judge in this State has a discretion to allow credit for time spent on home detention bail and to, in effect, fix a period by which the sentence otherwise to be ordered is to be reduced thereby. There is no obligation on a court to give any such credit. Further, where some allowance is made, it inevitably will be significantly less than the total amount of time spent on home detention bail, but there is no accepted formula. It is akin to a personal circumstance to be taken into account and the particular facts of each case will inform whether or not credit is warranted and the extent of any such credit that is warranted.
[Footnotes omitted]
Whilst it is a common practice for a sentencing judge to make an allowance for a period of home detention and deduct that allowance from the head sentence and non-parole period a court does not have to approach the problem in that way. It can be taken into account as a personal circumstance of the prisoner to which the judge gives appropriate weight when arriving at a head sentence and non-parole period. This latter approach may lack transparency.
[3] [2015] SASCFC 116 [42].
Principles on Appeal
An appeal to this Court against sentence is governed by the principles summarised by the High Court in House v The King.[4] As Kourakis J (as his Honour then was) said in R v Horstmann:[5]
On an appeal against sentence, the Court of Criminal Appeal has no power to set aside or vary that sentence unless it is satisfied that the sentence is affected by an error of the type identified in House v The King: a failure to take into account relevant matters; having regard to irrelevant matters; or unreasonableness (manifest excess or inadequacy). I shall refer to the first two errors as process errors and the last as an outcome error. Where either a process error or an outcome error has been made, the Court of Criminal Appeal may interfere.
Plainly enough, in the case of an outcome error it is implicit in a finding of manifest excess or inadequacy that the Court of Criminal Appeal has formed the view that a different sentence should have been passed and it will vary the sentence accordingly.
In the case of a process error, the Court of Criminal Appeal may yet refrain from interfering with the sentence if it thinks that the resulting penalty was appropriate notwithstanding the demonstrated error. In such a case, the Court of Criminal Appeal will not vary the sentence if it thinks that the same or a higher sentence would be passed if it were to exercise the discretion itself. However, where a process error is demonstrated, the Court of Criminal Appeal may reduce the sentence if in the exercise of its own discretion it considers that a lesser sentence is appropriate, even though the sentence under appeal is not manifestly excessive.
[Footnotes omitted]
[4] (1936) 55 CLR 499, 504-505.
[5] [2010] SASC 103 [36]-[38].
It must be borne in mind that a “specific” or “process error” will not be established by pointing to a perceived failure to give appropriate weight to a particular factor. It is no part of the task of a sentencing judge to expressly ascribe weight to the myriad of factors which inform the sentencing process.
Thus a submission that the sentencing Judge did not give adequate weight to a factor is not, of itself, capable of enlivening the Appeal Court’s authority to intervene. At most, it can form part of a submission that there was a manifest error; that is, that only by failing to give adequate weight to the material consideration could the Judge have reached a sentence which is so unreasonable or plainly unjust as to be outside the permissible range of sentences for the offender and the offence.[6]
[6] R v Lutze [2014] SASCFC 134.
Discussion
The appellant complains that the final sentence was manifestly excessive due to the failure of the sentencing Judge to give adequate weight to the amount of time that the appellant had spent on home detention bail. Thus he complains of an “outcome error”. Therefore the appeal can only succeed if the sentence is so unreasonable or plainly unjust that it is outside the permissible range of sentences for the offender and the offence.
It can be accepted that the offending, as already discussed, was serious. The offending was aggravated by the fact that the criminal trespass was in a residence and committed in company with three other offenders.
The reasons for the “inordinate delay” were explained to the Judge. There was a trial in relation to issues arising under section 269 of the Criminal Law Consolidation Act 1935 (SA). The hearing of these issues was delayed as one of the experts became ill while giving evidence. There was a delay of approximately nine months while the appellant was assessed by another expert. Ultimately a judge decided the issues against the appellant.
Also the appellant had been charged with an earlier offence of aggravated robbery. It appears that the reason he was on home detention bail as opposed to a simpler form of bail was, in part, related to the earlier charge. He was later found not guilty of the earlier charge.
The appellant on a number of occasions sought to have the home detention conditions removed. The applications were opposed by the prosecution and refused by the Court. The refusal to remove the home detention condition was largely related to the seriousness of the offences including the aggravated robbery of which he was eventually acquitted. The reports accompanying the applications demonstrated good compliance by the appellant in relation to his bail conditions.
On one occasion the trial of these charges did not proceed on its listed starting date due to there being no judges available to hear the case.
It can be seen that the “inordinate delay” was not due to any “fault” on the part of the appellant. The investigation of the section 269 issues took over 18 months to finalise. Delays in the finalisation of these charges were attributable to matters outside the control of the appellant.
During the time of his home detention the appellant was only able to obtain work for approximately six months. Apart from a few absences to attend family funerals the appellant was confined to his house for about three years. As submitted by counsel this affected his relationship with his partner. It affected his relationship with his children. The appellant found it “frustrating” and embarrassing. Despite good compliance by the appellant, applications to remove the home detention conditions were unsuccessful in a large part due to alleged offending for which he was later acquitted.
As submitted by Mr Stewart, counsel for the appellant, the time on home detention was almost as long as the final head sentence he received and was substantially longer than his final non-parole period.
It was against this background, taken in conjunction with the appellant’s low IQ and mental health problems, that Mr Stewart submitted the sentencing Judge ought to have allowed substantially more for the time on home detention than he actually allowed. This he submitted has led the Judge to a final sentence that was manifestly excessive.
In my view the Judge was required, in the circumstances of this case, to give far more weight than he did to the time spent on home detention.
While accepting that a sentencing judge has a wide discretion on such a matter I am of the view that in the particular circumstances of this case the rather exiguous amount of credit allowed for time on home detention by the sentencing Judge has led to the imposition of a sentence which is manifestly excessive. I would allow the appeal.
The Court must therefore resentence the appellant.
Resentence
I have already set out in some detail the offending and the relevant personal circumstances of the appellant.
Like the sentencing Judge I find the breach of the good behaviour bond proved and I would revoke the suspended sentence. The appellant will have to serve the three months imprisonment.
For the offences of aggravated serious criminal trespass in a place of residence and theft I would use section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and impose one sentence. He pleaded not guilty but was found guilty by the verdict of the jury. Whilst the appellant had offended on a number of occasions before these matters, and indeed was on a good behaviour bond at the time of the offending, he had a particularly deprived childhood and is a person of very low intelligence. In all of the circumstances, I would impose a sentence of three years and six months imprisonment to be served cumulatively upon the expiration of the three months imprisonment imposed.
In fixing the non-parole period in relation to that three years and nine months imprisonment I have had regard to his prospects of rehabilitation which given his good behaviour on home detention appear reasonable. I would fix a non-parole period of 20 months.
The appellant spent two months and five days in custody. In addition he spent as discussed three years and six months on home detention. To take into account both of those matters I allow nine months credit which will be deducted from both the section 18A head sentence and the non-parole period.
The result is a total of three years imprisonment with a non-parole period of 11 months both to run from 29 January 2016.
Order
The appeal is allowed. I would make the following orders:
1The appeal is allowed and the original sentence set aside.
2The breach of the good behaviour bond is proved and the suspended sentence is revoked. The appellant is to serve the three months imprisonment.
3For the offences of serious aggravated criminal trespass and theft the appellant is sentenced to two years and nine months imprisonment to be served cumulatively at the expiration of the three months imposed in order 2.
4I fix a non-parole period of 11 months.
5The total period of imprisonment of three years and the non-parole period of 11 months are both to commence from 29 January 2016.