R v Tyler
[2016] SASCFC 7
•16 February 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TYLER
[2016] SASCFC 7
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Nicholson)
16 February 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - SENTENCE
Appeal against sentence. The appellant was convicted by a judge of the District Court of four offences comprising a course of serious violent offending against the appellant’s defacto partner and her father.
He was sentenced to a total of 9 years and one month imprisonment with a non-parole period of five years and six months.
Held per Kourakis CJ (Blue and Nicholson JJ agreeing):
1. The sentences imposed for the offences of endangering life and serious criminal trespass were not manifestly excessive (at [38]-[40]);
2. The sentence imposed for the offence of aggravated assault was manifestly excessive and must be reduced to seven months; the sentence of seven months being concurrent with the first offence of endangering life, it has no effect on the total period of imprisonment to be served (at [36]-[37], [39]);
3. When a defendant appeals against a sentence for an offence but not against a sentence imposed at the same time for another offence, consideration of the appeal is confined to the sentence the subject of the appeal in the absence of a cross-appeal by the Director (at [42]-[48]);
4. The sentences imposed on the offences of endangering life were not influenced by the erroneously long sentence imposed on the aggravated assault convictions (at [42]-[49];
5. The sentence imposed for the aggravated assault offence was not part of, or an integer of, the sentences imposed on any of the other offences (at [42]);
6. Appeal allowed to the extent of reducing the sentence of imprisonment for the aggravated assault offence to 7 months. Appeal otherwise dismissed (at [50]-[51]).
Held per Blue J:
1. Additional observations concerning appeals against sentence when the appellant has been sentenced separately on multiple counts (at [54]-[64]).
Criminal Law Consolidation Act 1935 (SA) ss 18A, 32, 348, 352, 353; Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 32, referred to.
R v Delphin (2001) 79 SASR 429; McGarry v The Queen (2001) 207 CLR 121; Strong v The Queen (2008) 224 CLR 1; R v Saunders (2011) 210 A Crim R, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Court of Criminal Appeal, appeal against conviction, appeal against sentence, endangering life, aggravated assault"
R v TYLER
[2016] SASCFC 7Court of Criminal Appeal: Kourakis CJ, Blue and Nicholson JJ
KOURAKIS CJ. This is an appeal against a sentence of nine years and one month with a non-parole period of five years and six months imposed in the District Court for four offences comprising, in the large part, a course of serious violent offending against the appellant’s defacto partner RB and her father JB.
The appellant was committed to the District Court for trial on two of the offences of which he was ultimately convicted but was first charged with the other two on an Ex-Officio Information laid in the District Court. For that reason the reduction in sentence to which the appellant was entitled by reason of the guilty pleas he eventually entered on all four charges differed as between those counts. All four charges had been consolidated, and charged with others which were ultimately abandoned, on an Information dated 5 December 2014 (the December Information).
The December Information was listed for trial on 23 February 2015. On that day a voir dire hearing was held. On the following day the accused was arraigned and pleaded guilty to four counts in full satisfaction of the Information.
The counts to which the appellant pleaded guilty and the notional and actual sentences imposed by the Judge for each count are set out in the following table:
Count & Date of Offence Offence & Penalty Particulars Sentence 1. (13/5/2013)
Aggravated assault causing harm
Maximum penalty – four years imprisonmentPushing RB against wall 18 months notional sentence reduced by 30.6% to one year and two weeks imprisonment 4. (2 or 3/9/2013)
Endangering life,
intending or recklessly indifferent as to endangering life of JB
Maximum penalty - 15 years imprisonmentCutting brake lines of refrigeration truck of JB Five years notional sentence reduced by 30% to three years and six months imprisonment 5. (29/9/2013)
Serious criminal trespass
Maximum penalty - 10 years imprisonmentEnter cool room of JB’s market garden and turning off the power including some damage and theft of goods Two years notional sentence reduced by 10.5% to 21½ months imprisonment 8. (1/12/2013)
Endangering life,
intending or recklessly indifferent as to endangerment of his life
Maximum penalty - 15 years imprisonmentCut brake lines to refrigeration truck of JB Six years notional sentence reduced by 9.8% to five years and five months imprisonment
The Judge ordered that the sentences imposed on counts 1 and 4 be served concurrently and that the sentences imposed on counts 5 and 8 be served concurrently as between themselves but cumulatively upon the sentences imposed on counts 1 and 4. The overall sentence was therefore eight years and 11 months reduced for the appellant’s pleas of guilty from a notional total sentence of 11 years. If all of the sentences actually imposed by the Judge, after taking into account the reductions for the appellant’s guilty pleas, were served cumulatively they would have totalled 11 years and 9 months. It follows that the concurrency ordered reduced the total period of imprisonment by three years or about 25 per cent.
The appellant’s offending also breached a bond dated 23 May 2012, entered into on the suspension of a sentence of imprisonment of two months for dishonesty offences.
The appellant also pleaded guilty to 16 counts, charged on complaints dated 13 February 2014 and 21 November 2014, of breaching an intervention order between 29 September 2013 and 11 January 2014. The intervention order had been served on him on 3 September 2013, later varied and served on 26 September 2013. Counts 1 and 2 of the complaint dated 21 November 2014 related to substantially the same conduct as that charged in counts 5 and 8 on the December Information. The remainder of the breaches were committed by sending text messages which, by and large, complained bitterly about the relationship and its end. Some were more abusive and menacing in their tone. The Judge did not impose any penalty for the breaches of the intervention order.
Circumstances of the offending
The appellant and RB met in 2005 through their employment. The two formed a relationship which ended with the commission of the first of the offences on 13 May 2013. The appellant and RB were heavy users of amphetamine in the last months of their relationship. Throughout the relationship the appellant harboured some hostility towards RB’s parents and rarely saw them.
Their son, Z, was born in 2009 and their daughter, I, in March 2013. From shortly before the birth of their son the appellant became verbally and physically aggressive, sometimes breaking items of RB’s personal property during his outbursts. During RB’s confinement for the birth of their daughter the appellant damaged a laundry cupboard.
RB’s home was situated in Waterloo Corner about two kilometres away from her father’s market garden. The market garden premises included a house and cool room.
The circumstances of the aggravated assault committed on 13 May 2013 were these. RB had gone out for dinner with her parents. When she returned home the appellant was angry because he had expected RB to drive him to his sister’s house. Whilst RB sat on a couch feeding I, with Z sitting next to her, the appellant:
·spat at her
·broke her laptop
·drove a pick axe through the double brick hallway wall
The appellant then went outside where he damaged RB’s car. When he returned inside he pushed RB with both hands against her chest causing her to fall backwards onto the ground. RB suffered minor bruising to her arm. The close temporal and physical proximity of those acts was such as to allow the conduct to be charged as a single protracted assault. However, it was not so charged. In the prosecutor’s opening address the conduct the subject of count 1 was limited to the pushing of RB. The plea was subsequently entered and accepted on that basis.
On the next day the appellant returned to the home armed with a knife. In RB’s presence he threatened to kill her father, JB. RB applied for an intervention order which was issued on 21 May 2013 but not served on the appellant until 3 September 2013. This conduct was the subject of a charge on the Information which was withdrawn.
From 14 May 2013 RB was in so much fear of the appellant that she left her Waterloo Corner home and went to live with her parents at Athelstone. The appellant broke into RB’s home whilst she was away damaging it and damaging the monitored alarm. The appellant made admissions to this conduct in text messages sent to RB.
The appellant persisted in sending threatening messages to RB including a threat that bikies had been engaged to kill her parents. That text was not a breach of the intervention order which had not yet been served on the appellant.
In July 2013 RB felt safe enough to move back to Waterloo Corner. On 1 September 2013 RB took her children to the appellant’s sister’s home believing that that was in accordance with an access arrangement made with the appellant. Whilst there she received a threatening text from the appellant demanding that she bring the children to their former joint home within 10 minutes or he would “smash the house up!!” She returned to her home to find the front window of the lounge room broken. The window was repaired on 16 September 2013 but it was broken again at the same time that the front of her house was covered in yellow paint with images of a hangman. JB’s truck was splashed with yellow paint whilst it was parked in front of his Athelstone home on the same night. In my view, the witness statements prove that the appellant committed those acts. They do not merely raise a suspicion of his involvement. Even though the appellant is not to be sentenced for that conduct, it provides a context against which to assess the appellant’s motivations and RB’s fears.
JB’s Athelstone home has a sloping long driveway which ascends away from the house in the direction of the road. At about 4.00 am on 2 or 3 September 2013, the evidence is not clear as to which day, when JB started up his refrigeration truck to go to work he discovered that the brakes were not functioning properly. An examination revealed that the brake line had been cut. That incident is the conduct which is the subject of the first endangering life charge (count 4). The following submission was put as to the appellant’s belief as to the likely consequences of cutting the brake lines:
MR VADASZ … The offending was founded in a distinct set of facts and brought about by the pressures of the breakdown of the relationship and the mental health issues caused his excessive amphetamine use. It was directed against the people he considered to be the cause of his problems, although he now realises that that was entirely misplaced. There was no jury. Part of that is very much luck with respect to the brake line incidence although I understand at least in his state of mind he understood that the area in which the truck was housed required the driver to exit the property by going in a slight uphill grade and at least in his muddled thinking he assumed that the driver would have noticed that there was something wrong but I just put that forward as something he says crossed his mind at the time.
Later on the same day that the brake lines were cut, RB left her parents’ Athelstone home, where she was again staying, to feed pets at Waterloo Corner. There, she was confronted by the appellant. He said to her:
You wait and see what happens tonight, the brakes were nothing, your dad is going to be devastated.
That incident was reported to the police, on 3 September, who arrested the appellant and served the intervention order on him. In contravention of that order, that night at 11.03pm the appellant sent RB a text which read:
Am I seeing my kids or do I start blowing shit up?
In late September JB installed CCTV cameras at his work premises at Waterloo Corner and at his home in Athelstone because of his and his family’s fear of the appellant.
On 29 September 2013 the appellant entered the cool room of JB’s Waterloo Corner business premises. RB’s brother, BB, lives in a house on the premises. On checking the cameras he noticed that the power to the cool room had been turned off. When he went to the cool room he saw that punnets of Kale seedlings stored there had been thrown to the ground, causing some $500 in damage. That conduct is the subject of count 5. In his victim impact statement, BB described his fear when he walked down to the cool room as follows:
There have been other incidents of break-ins to the business, checking the cameras and noticing that the power had been turned off to the sheds. I had to go over in the pitch black dark by myself to try and turn the power back on so that the produce would not be ruined. I did this not knowing if Aaron was still around, it was terrifying and my wife watched the security cameras in case I got stabbed or hurt by Aaron, it was a terrible way to live.
On 4 October 2013 the driveway fence at JB’s Athelstone home was cut and a large cement boulder left in the middle of the driveway. On 5 October 2013 the front fence of RB’s home at Waterloo Corner was dismantled and stolen. The window to the walk in robe off the main bedroom was smashed with a rock. The split system air conditioning unit was ripped from the wall. The phone line to the house was cut which necessarily affected the alarm. There was no eye witness evidence that the appellant committed those acts and he was not charged with those acts. However, the commission of the offences to which the appellant pleaded guilty, the appellant’s strong motive, and the improbability of independent unrelated offending of that kind together prove the appellant’s criminal complicity in that conduct.
The appellant’s culpability for the following events was also established by the totality of the material:
·Damage to an awning on the front of the veranda of RB’s home on 6 October 2013.
·The breaking of a window and the disconnection of the power at the meter box at RB’s home on 7 October 2013.
·The punching of the carport wall and damage to window ledges, sensor lights and security doors at RB’s home on 13 October 2013.
·The disconnecting of power and the cutting of CCTV camera cords at JB’s business premises on 14 October 2013.
·The spray painting of the words “drop the shit or this gets worse” on RB’s car on 29 November 2013.
On 30 November RB caused CCTV cameras to be installed at her Waterloo Corner home. From the end of November JB started sleeping at his business premises because of his concerns that the appellant would cause more damage there.
On 1 December 2013 an inspection of CCTV footage from cameras at the Athelstone home revealed that the appellant had again entered the property and stood around the truck for about 10 minutes. The appellant was seen to wave to the CCTV camera. An inspection of the truck showed that the brake fluid lining and ABS cable had again been cut. That conduct was the subject matter of the endangering life charge in count 8.
There was some uncertainty before the Judge about the way in which uncharged conduct was to be treated. On Tuesday 24 February 2015, immediately before the appellant pleaded guilty, the Judge was informed of the basis of the plea as follows:
MR POWELL: A proposal has been put to resolve the matter which the DPP is prepared to accept. It would involve pleas by the accused to four of the nine counts presently charged on the information, those being counts 1, 4, 5 and 8. The proposal is that the pleas to those four offences be on full facts; in other words, the allegations of I will call it misconduct or uncharged conduct as appear in the statements of [RB] and her father [JB] are maintained and would be part of the background when it comes to the sentencing of the accused. That’s the proposal as I understand it and if that remains in place, then the prosecution is prepared for Mr Tyler to be rearraigned.
HER HONOUR: Thank you. Is that the case, Mr Vadasz?
MR VADASZ: Yes and I will just spell out a little bit of that. Mr Tyler would plead guilty to those four counts on the understanding that he does not dispute any other allegations of criminal conduct contained in the various statements of [RB] and [JB] where those allegations can be established by direct evidence. I mean, for example, they suspect that he did other things, they suspect he did everything, in fact a lot of things, and there is no admission of their suspicions.
Just to give you a clear example, count 3, the aggravated threatening life, is not proceeded with. Mr Tyler understands that that involves him threatening the life of the father and he is not going to get up and say that never happened, but that is understood. But what also needs to be made clear is that this was a relationship that went on for a number of years, had two children of the relationship, and there are always two sides to a relationship, things don’t occur in a vacuum, and Mr Tyler has provided instructions about the relationship and some of those instructions or all of those instruction may well have been put, but it doesn’t mean that he challenges any part of the statements that relate to uncharged acts.
HER HONOUR: All right.
MR VADASZ: I hope that’s clear enough.
HER HONOUR: I think I understand what you’re saying. Of course in a situation such as this, if he was to plead to 1, 4, 5 and 8, I would not be sentencing him for the third count, the fishing knife count if I can call it, he wouldn’t be sentenced by me for that. The only use that I will be making of the background material is to give it context and also it wouldn’t be that they are isolated counts and I’m sure you’ve explained all of this to Mr Tyler.
MR VADASZ: Yes, I should put that. It is understood that he is only to be sentenced for the offences to which he has pleaded guilty.
When the matter was called on for further submissions on 28 May 2015 the appellant’s counsel made the following submission:
MR VADASZ: … As I recall my submissions when the guilty pleas were entered, Mr Tyler admitted those matters that formed the basis of the charges to which he pleaded guilty. He admitted those matters for uncharged conduct but he disputed a lot of the other material. I’ll put it another way, he did not admit any of the other material that formed the background in that regard.
The submission is a little clumsy but I do not read it as retracting the concession made on 24 February 2015.
The uncharged offending which I have found to be proved beyond reasonable doubt can therefore be taken into account for the purposes of:
·showing that the offences to which the appellant pleaded guilty were not isolated;
·explaining the full extent of the fear caused by the offences to which the appellant pleaded guilty; and
·assessing the relative weight to be given to personal deterrence on the one hand to rehabilitation on the other in sentencing the appellant for the offences to which the appellant pleaded guilty.
Personal circumstances
The appellant is 39 years of age. The appellant has a strong work ethic and excellent employment history. His longest period of employment was as a full time fork lift driver with National Foods. He had full time employment as a night time freezer cleaner for Coles over the three years preceding his apprehension. The appellant was working voluntarily at his parents’ commercial cleaning business at the time he was apprehended.
The appellant used cannabis heavily from age 16 to 21. The appellant smoked ice for three to four years before his apprehension, he and RB were using ice on a daily basis just before their relationship ended. The appellant admitted that he was severely addicted to ice in the last six months of the relationship. The appellant reported to the psychologist Mr Balfour that he had gone without substantial sleep for up to two months and he had experienced drug induced psychotic symptoms. He last used ice in December 2013.
The appellant’s prior convictions show a tendency to violence. He was imprisoned for three months for assaulting his father when he was aged 18.
When asked by Mr Balfour to identify the victims of his offending the appellant responded:
Father-in-law, mother-in-law, ex-partner, my kids, my family, my mum and dad, myself. Like everybody else I could have hurt. On the road, like innocent people and the community.
When asked to describe the impact of his offending on the victims the appellant replied:
They would have been pretty angry. I don’t know they would have been pretty angry and pissed off at what I did. Yeah I guess they would have been scared that I did it.
The appellant’s reference to JB as just one of many victims which included his own parents and himself, and his reluctant acknowledgment of the fear his victims suffered, does not show great insight into the nature and consequences of his offending.
On a scale of poor, fair, and good, Mr Balfour described the appellant’s prognosis to cease offending as fair. That assessment was based on Mr Balfour’s opinion that there were good prospects that the appellant could overcome his ice addiction which was he thought to be the primary criminogenic risk factor. His opinion was also based on:
·Mr Balfour’s view that the appellant had a demonstrated capacity to overcome addiction by giving up cannabis;
·the fact that the appellant had been totally abstinent from illicit drugs whilst imprisoned;
·the appellant’s age;
·the appellant’s, albeit belated, expression of remorse and victim empathy;
·his fear of imprisonment;
·his relationship with his children;
·the support of his parents; and
·the development of insight on the importance of avoiding negative peers.
Insight into the reasons for, and the need to change, his attitude to women with whom he forms relationships is not mentioned by Mr Balfour.
Mr Balfour’s prognosis is probably optimistic. It fails to address the appellant’s underlying aggressive personality traits, evidenced by his prior violent offending, which have been exacerbated by his ice addiction, but predate it.
Discussion
I deal first with the offence of aggravated assault. The appellant must be sentenced for that offence alone and not for the other uncharged assaults he committed against RB. The appellant cannot be sentenced for the violent and frightening way in which he damaged property at about the time of that assault. Of course the fear caused by the push for which he is to be sentenced was all the greater because of the conduct which preceded it. Moreover, the circumstance that the assault was committed in the context of a pattern of serious violence against RB means that the appellant is not entitled to the leniency that might have been extended if the offence were isolated. The fact that the offence was not isolated also means that the appellant’s sentence must reflect a relatively greater need for personal deterrence and relatively less scope for rehabilitation.
Nonetheless, a sentence of 18 months imprisonment is manifestly excessive for an assault constituted by pushing which, even though causing much fear and some bruising, resulted in no more serious injury. The appropriate sentence in my view is 10 months, which, on applying a 30 per cent reduction for the appellant’s guilty plea, results in a sentence of seven months imprisonment.
Even though the serious criminal trespass charged in count 5 was committed in a non-residential building the sentence imposed was appropriate. The standard set by this Court in R v Delphin[1] is 20 to 24 months after reduction for a guilty plea. In any event, the offending in this case is more serious than trespasses on residences committed for the purposes of theft. The offence was part of, and was calculated to maintain, a regime of terror over JB and her family.
[1] (2001) 79 SASR 429.
Be that as it may, the sentences imposed for the assault and the serious criminal trespass had no substantial effect because they were ordered to be served concurrently with the sentences imposed on the two endangering life charges.
The sentences imposed for the offences of endangering life are at the high end of the range but are not manifestly excessive having regard to the maximum penalty of 15 years imprisonment. Even though it may be accepted that the appellant’s primary purpose in committing those offences was to instil fear and cause inconvenience he must have appreciated that there was a substantial risk to JB’s life.
The Judge did not err in ordering that the sentences imposed on the offences of endangering life be served cumulatively. I acknowledge that the offending was part of a course of conduct but the appellant’s brazen reprise of his life threatening conduct after service of the intervention order was a distinct criminal escapade. Moreover, the importance of protecting victims of domestic violence, both generally and in the particular matter before the Court, calls for sentences which deter protracted and persistent violence. The scope for concurrency in sentencing for offences of that kind is therefore much reduced.
Accordingly, even though I would set aside the sentence imposed on the conviction for the aggravated assault and impose a sentence of seven months, the other sentences, individually and in totality, are not affected by error because of the order that the sentence be served concurrently. In particular, the sentences imposed on the other offences form no part of, and are not “integers” of, the sentence imposed on the offence of aggravated assault. There is, therefore, no reason to set them aside by reason of the error in sentencing for the aggravated assault offence. I elaborate on the reasons for so concluding below.
A sentencing order is auxiliary to an order of conviction of an offence. A sentencing order cannot be imposed unless and until there is a conviction. Statutory provisions have, over time, added to the sentencing orders of the common law. For example, in the 19th and 20th centuries sentences of life imprisonment or determinate sentences of imprisonment progressively replaced the death penalty for felonies. Fines are a common statutory penalty for misdemeanours and summary offences. In more recent times, statutes have provided for other, or additional, orders to be made. Forfeiture, various forms of declarations, supervision orders, and orders for “indefinite” imprisonment are examples. However, such orders are commonly dependent on, and attached to, a conviction.[2] For that reason, the orders of indefinite detention considered in McGarry v The Queen[3] and Strong v The Queen[4] were described as “part of the sentencing decision”[5] or an “integer of a sentence”.[6] Orders of that kind are contemplated by the definition of “sentence”, particularly the words “or in connection with”, found in s 348 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). An error in part of a sentencing order, speaking generally, will vitiate the order because each part of a sentencing order will generally be fixed by reference to the other.[7] That will not necessarily be the case when discrete individual sentences are imposed on convictions for a series of offences. The Director’s submission that the definition of sentence in s 348 of the CLCA should be extended to an order made on a different conviction altogether ignores fundamental principles of common law criminal procedure and must be rejected.
[2] That statutory connection may reflect a constitutional imperative.
[3] (2001) 207 CLR 121.
[4] (2008) 224 CLR 1.
[5] Strong v The Queen (2008) 224 CLR 1 at [27] (McHugh J).
[6] Strong v The Queen (2008) 224 CLR 1 at [25] (McHugh J).
[7] See, for example, R v Saunders (2011) 210 A Crim R 1.
It is common to refer to the total period of imprisonment to be served on multiple sentences of imprisonment as the “head sentence”. That terminology is a convenient short hand for the purposes of fixing a single non‑parole period pursuant to s 32 of the Criminal Law Sentencing Act 1988 (CLSA). It is not, however, a sentence in itself, either at common law or by statute. It is merely the total period of imprisonment calculated arithmetically which is to be served as a result of the multiple individual sentences imposed. A sentenced prisoner may appeal one or more of those sentences and not the others, or all of the sentences. The grounds of appeal may allege that a particular sentence, taken alone, is manifestly excessive, or that the “head sentence” is manifestly excessive because of an error in the way the sentences were ordered to be served cumulatively, in part or in whole, or because of some other failure to apply the principle of totality.
The latter ground will be made out only if the cumulative total period of imprisonment of all of the sentences imposed is manifestly in excess of the punishment warranted by the offending as a whole. Individual sentences may be reduced or the degree of concurrency increased to correct that error. Absent an error in any of the individual sentences, there will be no reduction in the total period of imprisonment to be served unless that total is manifestly excessive irrespective of any difference of view, within the acceptable sentencing range, as to how that total should be allocated to the individual offences.
If the former ground is made good the particular sentence found to have been erroneously imposed must be reduced even if the Court of Criminal Appeal takes the view that the total period of imprisonment was not manifestly excessive. To do otherwise would be to ignore the statutory direction in s 353(4) of the CLCA to set aside a sentence which is shown to be manifestly excessive and to impose instead the sentence which should have been imposed. That statutory directive could not be followed, and the total period of imprisonment imposed by the Judge maintained, unless the sentences imposed on the convictions for the other offences, were, in effect, increased. That course is precluded by s 353(5) of the CLCA. On setting aside the manifestly excessive sentence and imposing a lesser one, the Court of Criminal Appeal must fix a new non-parole period. The fixing of a new non-parole period is not, in any real sense, an interference with the other sentences. The non‑parole period is a statutory sentencing order attaching to all of the convictions on which the sentences to which it applies are fixed.
In some cases, the consequence of reducing the manifestly excessive sentence may be that the total period of imprisonment is less than that which the entirety of the offending warrants because, for example, the sentencing Judge reduced the other sentences to avoid a crushing overall result. That risk can largely be avoided by the Director utilising s 353(2) of the CLCA when, as is usually the case, an offender appeals against all of the sentences imposed. If the appellant does not then the prospect of an unjustly favourable reduction, by reason of the offender’s selective decision to appeal only the single manifestly excessive sentence, may in itself warrant a grant of permission to appeal to the Director. There may be some cases in which neither of the options I have mentioned is available. If a remedy be required for those cases it is a matter for Parliament.
The position with respect to individual multiple sentences imposed on a series of convictions may be contrasted with the fixing of a single sentence pursuant to s 18A of the CLSA. An error in the notional sentence assigned to one of a series of offences in the process of fixing a single sentence for the purposes of that provision will vitiate the single sentence imposed on the convictions for all of the offences. However, precisely because there is a single statutory sentence, the appeal may still be dismissed if the Court of Criminal Appeal on resentencing takes the view that the single sentence imposed by the Judge was rightly imposed on all of the convictions encompassed by that order.
Returning to the circumstances of this appeal, the position can be summarised as follows:
·the sentences imposed for the offences of endangering life were not manifestly excessive;
·the sentence imposed for the offence of aggravated assault was manifestly excessive and must be reduced to seven months; the sentence of seven months being concurrent with the first offence of endangering life, it has no effect on the total period of imprisonment to be served;
·the sentences imposed on the offences of endangering life were not influenced by the erroneously long sentence imposed on the aggravated assault conviction; and
·the sentence imposed for the aggravated assault offence was not part of, or an integer of, the sentences imposed on any of the other offences.
The appeal against the sentence imposed for the offence of aggravated assault must be allowed, the sentence imposed in the District Court set aside and a sentence of seven months’ imprisonment imposed.
The appeal must otherwise be dismissed.
BLUE J: I agree with Kourakis CJ.
I add my additional reasons for agreeing with Kourakis CJ on the interpretation of sections 348 and 352 of the Criminal Law Consolidation Act 1935 (SA) (the Act).
Section 352(1)(a)(i) and (ii) and (ab) of the Act confer a right of appeal (usually with permission) on a defendant convicted on information against the conviction and in certain circumstances on the Director of Public Prosecutions against an acquittal of a defendant tried on information. Section 352(1)(a)(iii) confers on the defendant and the Director of Public Prosecutions a right of appeal (with permission) against sentence passed on the conviction.
Section 352(1)(a) and (ab) of the Act provide:
352—Right of appeal in criminal cases
(1)Appeals lie to the Full Court as follows:
(a) if a person is convicted on information—
(i)the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the permission of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;
(iii)subject to subsection (2), the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Full Court;
(ab) if a person is tried on information and acquitted, the Director of Public Prosecutions may, with the permission of the Full Court, appeal against the acquittal on any ground—
(i)if the trial was by judge alone; or
(ii)if the trial was by jury and the judge directed the jury to acquit the person;
A defendant might be charged on information with two or more separate offences or two or more alternative offences[8] and (subject to the power of the court to order separate trials[9]) there may be a concurrent trial of two or more offences. Even if separate offences are charged on separate informations, subject to the discretion of the court, there may be a concurrent trial of the separate offences. If a defendant is convicted of two or more offences, there is a separate conviction recorded in respect of each separate offence. If a defendant is acquitted of two or more offences, there is a separate acquittal recorded in respect of each separate offence. If a defendant is convicted of one offence but acquitted of another offence, there is a separate conviction and acquittal recorded in respect of each offence.
[8] Pursuant to section 278(1) of the Criminal Law Consolidation Act 1935 (SA) when the charges are founded on the same facts, or form, or are a part of, a series of offences of the same or a similar character.
[9] Pursuant to section 278(2) and (3) of the Criminal Law Consolidation Act 1935 (SA).
Section 352 of the Act proceeds on the same basis when a matter reaches the appeal stage that there is a separate conviction or acquittal in respect of each separate offence and separate rights of appeal in relation thereto. It proceeds on the same basis when separate sentences are imposed on convictions for separate offences. If a defendant is convicted of two or more offences, the defendant may appeal against one or the other or both of the convictions. Likewise, if a defendant is acquitted of two or more offences, the Director of Public Prosecutions may (if the statutory criteria are met) appeal against one or the other or both of the acquittals. If separate sentences are imposed in respect of separate convictions, either the defendant or the Director may appeal against one or the other or both of the sentences.[10] Where permission to appeal is required, the Court may grant permission to appeal in respect of the conviction, acquittal or sentence of one offence and refuse permission to appeal in respect of the conviction, acquittal or sentence of another offence.
[10] If the court imposes a single penalty for multiple offences pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), there is only a single sentence against which the defendant or the Director can appeal. See [64] below.
Section 348 of the Act defines “sentence” in an inclusionary manner as follows:
‘sentence’ includes any order of the court of trial or of the judge thereof made on, or in connection with, a conviction with reference to the convicted person, or any property, or with reference to any moneys to be paid by the person, and also includes an order under section 39 of the Criminal Law (Sentencing) Act 1988 discharging the convicted person, without imposing a penalty, on the person entering into a bond.
The reference to “an order made on, or in connection with, a conviction” is a reference to all of the types of order that can be made upon conviction, including not only the imposition of a sentence of imprisonment and fixing of a non-parole period, fine or community service obligation but also a restitution order,[11] compensation order,[12] restraining order[13] or intervention order[14] (each of which is referred to in section 348 in the definition of “ancillary order”), a forfeiture order,[15] a declaration[16] or order for entry into a bond.[17] It also refers to the date when a sentence of imprisonment is to commence including an order that the sentence imposed is be served concurrently with or cumulatively upon another sentence of imprisonment (whether imposed at the same time or previously).
[11] Pursuant to section 52 of the Criminal Law (Sentencing) Act 1988 (SA).
[12] Pursuant to section 53 of the Criminal Law (Sentencing) Act 1988 (SA).
[13] Pursuant to section 19A of the Criminal Law (Sentencing) Act 1988 (SA) and Part 4 Division 7 of the Summary Procedure Act 1921 (SA).
[14] Pursuant to section 19A of the Criminal Law (Sentencing) Act 1988 (SA) and sections 6, 20 and 23 of the Intervention Orders (Prevention of Abuse) Act 2009(SA).
[15] For example, pursuant to 27AAB(4) of the Firearms Act 1977 (SA).
[16] Such as a serious and repeat offender declaration pursuant to section 20B of the Criminal Law (Sentencing) Act 1988 (SA).
[17] Pursuant to section 39 of the Criminal Law (Sentencing) Act 1988 (SA).
The reference to “an order made on, or in connection with, a conviction” does not refer to a separate sentence imposed in respect of a separate conviction for a separate offence. A sentence for offence A is not made in connection with the conviction of a different offence B merely because the Court happens to impose the sentence for offence B at the same time as imposing the sentence for offence A. Nor is this so because the sentence for offence B is made concurrent with or cumulative upon the sentence for offence A. The construction advanced by the Director in this respect is contrary to the wording, context and evident purpose of section 352 and the definition of “sentence” contained in section 348.
If a defendant appeals against the sentence imposed on conviction for one offence contending that the head sentence is excessive,[18] and the Director wishes to contend that, if the head sentence for that offence is excessive, the excess is counterbalanced by the inadequacy[19] of a head sentence imposed at the same time on conviction for another offence, the appropriate course is for the Director to seek permission to appeal against the sentence for the other offence on the conditional basis that the Director’s appeal is pressed only if the defendant’s appeal is successful.
[18] Whether manifestly excessive or because the sentencing discretion miscarried for another reason.
[19] Whether manifestly inadequate or because the sentencing discretion miscarried for another reason.
If a defendant appeals against sentence contending that the non-parole period is excessive[20] in circumstances in which he or she has been sentenced for multiple offences and a single non-parole period has been fixed by reason of the convictions for the multiple offences pursuant to section 32(1) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), this Court will necessarily consider whether the non-parole period is excessive having regard to all of the multiple offences for which the appellant was sentenced as well as any earlier offences in respect of which the appellant is still serving a term of imprisonment.
[20] Whether manifestly excessive or because the sentencing discretion miscarried for another reason.
If a defendant appeals against a sentence of imprisonment imposed on conviction for one offence contending that the head sentence is excessive in circumstances in which the defendant was sentenced to imprisonment on conviction for another offence and the sentences were ordered to be served concurrently or partially or wholly cumulatively,[21] and this Court finds vitiating error and proceeds to resentence the defendant, this Court will necessarily need to consider whether the sentences should be served concurrently or partially or wholly cumulatively.
[21] Whether on the ground of manifest excess or because the sentencing discretion miscarried for another reason.
If a defendant appeals against a single sentence imposed for multiple offences pursuant to section 18A of the Sentencing Act contending that the head sentence is excessive,[22] there is only a single sentence the subject of the appeal and the ultimate question for this Court on appeal is whether that sentence was manifestly excessive or the sentencing discretion miscarried for another reason. In those cases in which the sentencing judge had indicated separate notional sentences in respect of each offence, if the defendant contends that the indicative notional sentence in respect of one offence is excessive, the Director is entitled to contend that any excess is counterbalanced by an indicative notional sentence in respect of another offence being inadequate. The ultimate question for this Court in such cases is the excessiveness or inadequacy of the single sentence imposed pursuant to section 18A.
[22] Whether manifestly excessive or because the sentencing discretion miscarried for another reason.
I agree that the sentence imposed by the Judge on count 1 was manifestly excessive and should be reduced to a sentence of imprisonment for seven months after discount for the guilty plea and that otherwise the appeal should be dismissed for the reasons given by Kourakis CJ.
NICHOLSON J. I agree with the Chief Justice
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