R v Taylor - [2015] SASCFC 132

Supreme Court of South Australia
(Court of Criminal Appeal)
R v TAYLOR
[2015] SASCFC 132
Judgment of The Court of Criminal Appeal
(The Honourable Acting Chief Justice Gray, The Honourable Justice Kelly and The Honourable Auxilliary Justice David)
18 September 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
Application for permission to appeal against sentence by the Director of Public Prosecutions. The respondent was jointly charged on Information with the offences of aggravated serious criminal trespass in a place of residence and aggravated causing serious harm with intent. The circumstances of aggravation were the use of weapons and being in company with another. The respondent and his co-accused brutally assaulted the victim in the course of recovering a drug debt. The victim was left with life-long mental impairment. The respondent gave a number of different versions of events to police and initially pleaded not guilty to both charges. About one week prior to trial, the respondent pleaded guilty to aggravated causing serious harm with intent. A disputed facts hearing was held in which the respondent sought to minimise his involvement in the offending, giving a version of events which again differed from the versions of events previously given to police. His evidence was rejected by the sentencing Judge. The Judge sentenced the respondent to a term of imprisonment of three years, two months and two weeks, with a non-parole period of one year, seven months and one week.
Whether the sentence was manifestly inadequate. Whether the non-parole period was manifestly inadequate.
Held per Gray ACJ (Kelly J and David AJ agreeing) (granting permission to appeal and allowing the appeal):
1. The sentence was manifestly inadequate.
2. The non-parole period was manifestly inadequate.
3. Respondent resentenced to a term of imprisonment of seven years, with a non-parole period of three years.
Criminal Law Consolidation Act 1935 (SA) s 23(1), s 170 and s 352, referred to.
Cameron v The Queen (2002) 209 CLR 339; R v Perdikoyiannis, Condo and Peabody [2011] SASCFC 82; R v Koch [2015] SASCFC 31; R v Campbell [2012] SASCFC 44; R v Nemer (2003) 87 SASR 168; R v Harkin (2011) 109 SASR 334; Dinsdale v The Queen (2000) 202 CLR 321; R v Marikar [2010] SASCFC 36; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; R v Burner [2015] SASCFC 133, considered.

R v TAYLOR
[2015] SASCFC 132
Court of Criminal Appeal: Gray ACJ, Kelly J and David AJ
GRAY ACJ.

This is a Crown appeal against sentence.
Introduction
The defendant and respondent, Nathan James Taylor, was jointly charged on Information with Kevin Gordon Burner with the offences of aggravated serious criminal trespass in a place of residence[1] and aggravated causing serious harm with intent.[2] It was alleged that, on 28 July 2012 at Henley Beach, Taylor and Burner entered the place of residence of DV as trespassers with the intention of committing theft and assault. It was further alleged that they committed the offences with the knowledge that DV was lawfully present, were in company with each other at the time of the offence and used offensive weapons, namely a blade and a hammer, to commit the offence.
[1] Criminal Law Consolidation Act 1935 (SA) section 170(1).
[2] Criminal Law Consolidation Act 1935 (SA) section 23(1).
On 3 June 2013, Taylor and Burner were arraigned in the District Court. Taylor pleaded not guilty to both counts. Burner pleaded not guilty to aggravated criminal trespass and guilty to aggravated causing serious harm with intent. On 25 March 2014, about one week prior to trial, Taylor pleaded guilty to the offence of aggravated causing serious harm with intent. The pleas were accepted by the prosecutor in full satisfaction of the Information.
At first, Taylor and Burner indicated that they would dispute the allegations as to their roles in the offending. Ultimately, however, Burner agreed to be sentenced on the basis alleged by the prosecution. Taylor gave evidence at a disputed facts hearing.
On 30 April 2015, the Judge sentenced Taylor to a period of imprisonment of three years, two months and two weeks. The Judge fixed a non-parole period of one year, seven months and one week. The Director of Public Prosecutions has sought permission to appeal against the sentence on the basis that the head sentence and non-parole period are manifestly inadequate.
The Judge sentenced Burner on the same day to a period of imprisonment of two years and six months. The Judge fixed a non-parole period of one year and three months. The Director also sought permission to appeal against Burner’s sentence.[3]
The Facts
[3] R v Burner [2015] SASCFC 133.
Taylor’s Evidence at the Disputed Facts Hearing
Taylor’s evidence at the disputed facts hearing may be summarised as follows. DV was a drug dealer who owed Taylor about $18,500.00 worth of drugs and cash. On 27 July 2012, DV agreed to make a payment. He then became uncontactable. At about 8.30 pm, Taylor sent a text message to DV in the following terms:
You would want to pick up your fucking phone. Last chance before Ser[b]ians visit you at home and work. Pick up.
The reference to “Serbians” is to be understood as a reference to Albanian debt collectors. That evening, DV was sent a number of messages concerning the repayment of his debt from Taylor’s phone, including: “Coming around today”, “Have you found it yet”, “Stop playing or I’ll see you at work”, “If you fuck with me there will be people higher than the Albanians.”
Burner drove Taylor to DV’s house. Burner shouted at DV, threw him against a wall and punched him to the head multiple times. DV moved toward Taylor, who punched him three times to the head. Burner used the handle of a pair of large ornamental scissors to hit DV on the head with “a great thud”. Burner searched the house while Taylor tended to DV. Taylor was “petrified” of Burner and feared for his own safety.
Taylor’s Police Interviews
The version of events given by Taylor at the disputed facts hearing stood in sharp contrast with the multiple versions of events he gave police.
Taylor spoke to police on 28 July 2012. He claimed ignorance of any assault on DV. Taylor’s version of events in this interview may be summarised as follows. He had invested money in DV’s hairdressing business and provided personal loans. On 27 July, he went with Burner to DV’s house to recover a payment. DV “ended up telling me to fuck off and I was like fuck you and I just walked off and Kevin was left behind and they started arguing”. He drove “straight home”, “played my X Box for a little bit, played with my boy and then I slept.” Burner did not mention anything the next morning.
A short time later, Taylor gave another interview to police. His version of events in his second interview may be summarised as follows. On the first occasion they went to DV’s house, Taylor and Burner argued with DV and left together. They went to DV’s house on a second occasion, unarmed. DV told Taylor to “fuck off”. Burner argued with DV and Taylor drove away. DV and Burner were “coming down scattered off speed”. Burner was “really angry about [DV]”. The next morning, Taylor thought Burner may have “done something” to DV as he was “being a smart arse about it, he likes talking in riddles. He’s like full... Buddhism, Hinduism crap.” Taylor was intimidated “a little bit” by Burner, “you know he’s like bigger frame and shit.” Burner had been violent toward him in the past, burning him with an oxy welder and throwing pavers at him.
On 29 July 2012, Taylor gave a further interview to police. His version of events on this occasion may be summarised as follows. On 27 July, he went to DV’s house alone on two occasions for coffee and a couple of biscuits – they were friends. They discussed repayment of a loan. At about 2.00 am, Taylor and Burner met at DV’s house. Burner yelled at DV “where’s the fucking ounce you cunt ... where’s the fucking ounce mate”. According to Taylor, “the next thing you know fucking bang [DV is] just lying on the ground, he’s lying on the fucking ground twitching and I’m like dude what the fuck are you doing”. Burner then “gets on top of [DV] and starts pounding the fuck out of him”. Taylor tried to protect DV but Burner kicked DV’s head out of Taylor’s arms. Burner left with two large black bags. Taylor remained behind to help DV. When Taylor left, DV was “fine”. Burner was indebted to the Albanians, “very nasty people”, and stole speed to pay off his debt. Taylor did not call police out of fear – he thought that he was “in trouble ... those Albanians are they’re mad ... they’re crazy, they’ll bury you for no reason”.
The sentencing Judge rejected the evidence of Taylor and sentenced on the following basis.
In the early hours of 28 July 2012, Burner and Taylor attended the home of the victim in suburban Adelaide in an attempt to recover what was claimed to be a debt. When the victim’s responses were unsatisfactory, Burner and Taylor seriously assaulted him, intending to do him serious harm. The fact that violence and weapons were used and the fact that they were in company with each other were matters of aggravation which call for a sentence which includes a significant component for deterrence. The offence is an extremely serious one, as evidenced by the maximum penalty of 25 years’ imprisonment.
The force used and the brutality of the assault are evidenced by the injuries sustained by the victim. The victim sustained a traumatic brain injury with skull damage. He has ongoing memory problems and cognitive impairment. The speed at which he is able to process information has reduced and he suffers from cognitive fatigue. He also sustained lacerations and bruising to his head. His head injuries have left an obvious contour defect. Further physical injuries included fractures to his ribs and spine. He also sustained a pneumothorax to the lung.
Apart from these injuries, the impact of the offending on the victim and his family was pervasive. The victim has ongoing feelings of fear for his personal safety. His capacity to work as a hairdresser has been compromised. He is easily tired in the course of completing day-to-day tasks as a result of the brain injury which he sustained. He now lives with his sister, who assists with day-to-day tasks.
The Sentencing Judge
As noted earlier in these reasons, a disputed facts hearing was held to determine the factual basis on which Taylor would be sentenced. On 21 October 2014, the sentencing Judge delivered his ruling in respect of Taylor’s role in the assault. The Judge considered that the degree of ferocity of the assault indicated that the defendants would have been aware of the risk of serious injury and intended to cause such injury. The Judge observed that Taylor’s evidence did not support a plea of guilty. The Judge noted that he had been assured by counsel for Taylor that Taylor wished to maintain the plea. The Judge rejected Taylor’s evidence as “he is so fundamentally at odds in his evidence with the concepts admitted by his plea that there is little left by way of acceptable mitigating content”. The Judge concluded that he would not distinguish between Taylor and Burner in respect of their roles in the assault.
The Judge described the assault as “severe” and the injuries to DV as “very serious” and life-long. The Judge sentenced Taylor on the basis that he was involved in a joint enterprise with Burner, and that he realised that Burner might cause serious harm intending to do serious harm.
The Judge had regard to Taylor’s record, the references before the Court, and the reliance placed on Taylor by his partner, young child and mother. The Judge considered a report from a psychologist addressing Taylor’s need for ongoing treatment concerning post-traumatic stress disorder and depression.
The Judge considered that Taylor had not taken responsibility for the assault and had tried to diminish his own involvement and highlight the involvement of Burner.
The Application for Permission to Appeal
The Director may appeal against a sentence passed on a person convicted on Information with the permission of the Full Court.[4] Permission to appeal should only be grated in rare and exceptional cases.[5]
[4] Criminal Law Consolidation Act 1935 (SA) section 352.
[5] Everett v The Queen (1994) 181 CLR 295, 299-300.
The principles regarding applications by the Director for permission to appeal against sentence are settled. The Director will be granted permission to appeal if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual Judges as to particular crimes or types of crimes to be corrected, or if a sentence is so far below the appropriate range of sentences that it reflects an error of principle or would shock the public conscience. If the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant permission to appeal even though no general point of principle will be established by the case.[6] Further, an error must be identified before a sentence may be interfered with.[7] Such error may be inferred from a result that is manifestly unreasonable or plainly wrong. However, a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[8]
[6]    R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168, 172.
[7]    Dinsdale v The Queen (2000) 202 CLR 321, 339-40 (Kirby J):
… As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts. [Footnote omitted.]
[8]    Dinsdale v The Queen (2000) 202 CLR 321, 339-40. See also R v Marikar [2010] SASCFC 36.
Once the court has determined that it is appropriate to grant permission, the court is to proceed without any further regard to the principle of double jeopardy and to impose a sentence that it considers appropriate having regard to the circumstances of the offending and the antecedents of the offender. As this Court observed in Harkin:[9]
Section 340 [of the Criminal Law Consolidation Act] precludes the Court from having regard to the “rule of law”, known as double jeopardy when resentencing. The words “Despite any other rule of law” should be presumed to have some work to do and should be given some meaning and effect.[10] In our view, the effect of section 340 is to remove from consideration any rule of law enabling a Court to impose, when resentencing, a sentence other than the sentence which the Court thinks ought to have been imposed at first instance.
If sections 340 and 353(4)(a)(i) are read together, and given that it is to be presumed that section 340 has some work to do, that work, in our view, is to remove the Court’s ability to temper a sentence in recognition of the element of double jeopardy involved in twice standing for sentence.
[9] R v Harkin (2011) 109 SASR 334, 343.
[10] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
Manifestly Inadequate
On the hearing of the application for permission, counsel for the Director pointed out that the maximum penalty for the offence of aggravated causing serious harm with intent is imprisonment for 25 years. It was accepted that sentences turn on the facts of each case. However, counsel drew attention to previous decisions of this Court which had imposed significantly higher sentences for assaults resulting in brain injuries.[11] It was submitted that general and personal deterrence must predominate for offences of assault committed in relation to debt recovery.[12] It was further submitted that a severe penalty is warranted for assaults which are protracted, cause serious harm and involve an intention to inflict serious harm and the use of weapons.
[11] See R v Koch [2015] SASCFC 31; R v Campbell [2012] SASCFC 44.
[12] R v Perdikoyiannis, Condo and Peabody [2011] SASCFC 82.
Counsel for Taylor submitted that the Director had failed to establish error on the part of the sentencing Judge. It was further submitted that the head sentence and discount were appropriate having regard to his guilty plea and personal circumstances.
On any view, the assault was protracted and brutal. The Judge was correct not to distinguish Taylor’s involvement in this joint enterprise. It was a cowardly and unprovoked attack. It occurred at the victim’s home. Weapons were used. The victim suffered serious physical injuries, ongoing psychological distress and lifelong cognitive impairment.
Taylor has continually failed to accept responsibility for his role in the assault. He pleaded guilty about one week prior to trial. The version of events presented by Taylor at the disputed facts hearing minimised his involvement to such an extent that the Judge, appropriately, questioned whether his plea could be maintained. The versions of events he gave police were inconsistent and self-serving. In these circumstances, Taylor’s plea of guilty cannot be said to demonstrate genuine contrition or remorse.[13]
[13] See Cameron v The Queen (2002) 209 CLR 339.
In my view, the sentence imposed was manifestly inadequate.[14] It may be accepted that, until this assault, Taylor had not engaged in serious offending for many years. He had a difficult childhood. His family rely on him. However, offending of this seriousness warranted the imposition of a head sentence in the range of eight to ten years.
[14] See R v McNamara (2009) 105 SASR 38; R v Perdikoyiannis, Condo and Peabody [2011] SASCFC 82; R v Harkin [2011] SASCFC 24; R v Campbell [2012] SASCFC 44; R v Clancy [2013] SASCFC 63; R v Koch [2015] SASCFC 31.
Conclusion
I would grant permission to appeal and allow the appeal. I would resentence Taylor to a term of imprisonment of eight years, reduced to seven years on account of his plea of guilty. I would fix a non-parole period of three years and six months.
KELLY J: I agree with the orders proposed by Gray ACJ and with his reasons.
DAVID AJ: I would allow the appeal for the reasons given by Gray ACJ and agree with the orders he proposes.