R v Van Setten

[2012] SASCFC 90

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v VAN SETTEN

[2012] SASCFC 90

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice David)

1 August 2012

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

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY

Appeal against sentence – appellant pleaded guilty to one count of aggravated endangering life, one count of aggravated recklessly causing serious harm, two counts of possessing a firearm without a licence and one count of aggravated assault – appellant also admitted breaching a suspended sentence bond which related to a sentence of imprisonment of three months – but for the appellant’s pleas of guilty the judge would have imposed a head sentence of 15 years and four months imprisonment – judge imposed a total sentence of 14 years and three months imprisonment in relation to the five offences – the judge revoked the suspended sentence of three months imprisonment and ordered that it be served cumulatively making a total head sentence of 14 years and six months – the judge fixed a non-parole period of nine years and nine months – whether the sentence was manifestly excessive – whether the judge erred in his approach to sentencing by concluding that the seriousness of the offending warranted a sentence that represented a substantial proportion of the prescribed maximum – whether the judge failed to adequately consider matters personal to the appellant.

Held: appeal dismissed – the sentence was severe but appropriately so and no sentencing error has been demonstrated – the sentence was not manifestly excessive – the judge did not err in concluding that the seriousness of the offending meant that the sentence would be a substantial proportion of the prescribed maximum – the sentencing judge set out in detail the appellant’s personal and family circumstances, antecedents, and referred to the psychiatric and psychological material that was placed before him and dealt with the appellant's future prospects and matters of rehabilitation.

Criminal Law Consolidation Act 1935 (SA) s 29, s 23, s 23(3); Criminal Law (Sentencing) Act 1988 (SA); Firearms Act 1977 (SA) s 11(1), referred to.
Inge v The Queen (1999) 199 CLR 295, distinguished.

R v VAN SETTEN
[2012] SASCFC 90

Court of Criminal Appeal: Vanstone, David and Peek JJ

1. VANSTONE J:    I agree that the appeal should be dismissed.  I agree with the reasons of David J.

2. DAVID J:  This is an appeal against sentence.  The appellant pleaded guilty to five offences which were particularised on three separate Informations.  He also acknowledged the breach of a suspended sentence bond which was revoked by the sentencing Judge.  The more serious offending which was committed on 25 May 2010 resulted in the appellant pleading guilty to:

   ·one count of aggravated endangering life contrary to s 29 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), the maximum penalty for that offence is 18 years imprisonment;

   ·one count of aggravated recklessly causing serious harm contrary to s 23(3) of the Act, the maximum penalty for that offence is 19 years imprisonment;

   ·one count of possessing a firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (SA) (“the Firearms Act”), the maximum penalty for that offence is seven years imprisonment.

3. On a separate Information, the appellant pleaded guilty to offending which took place on 21 May 2010 namely aggravated assault contrary to s 23 of the Act. The maximum penalty for that offence is four years imprisonment.

4. On a further ex officio Information the appellant was charged and pleaded guilty to possessing a firearm without a licence contrary to s 11(1) of the Firearms Act.  This related to a pen gun.  The maximum penalty for that offence is seven years imprisonment.  That offence took place on 26 May 2010. 

5. On 15 December 2009 the appellant had been sentenced in the Adelaide Magistrates Court to three months imprisonment for assaulting police.  That sentence was suspended on him entering into a bond to be of good behaviour with conditions for a period of 30 months.  The appellant admitted to breaching that bond and made no application to excuse that breach.

6. The sentencing Judge imposed concurrent sentences of 12 years imprisonment for the offences of aggravated endangering life and aggravated recklessly causing serious harm.  He imposed a cumulative sentence of 12 months for the offence of aggravated assault which took place on 21 May 2010.  He imposed a further cumulative sentence of 12 months imprisonment for possession of a rifle without a licence, which offence took place on 25 May 2010 and a further cumulative sentence of three months imprisonment for possession of the pen gun which took place on 26 May 2010.  The sentencing Judge indicated that, but for his pleas of guilty, the appellant would have been ordered to serve a head sentence of 15 years and four months.  The sentencing Judge also ordered that the previously suspended sentence of three months imprisonment imposed on 15 December 2009 be served cumulatively.  The total sentence was therefore 14 years and six months.  The sentencing Judge set a non-parole period of nine years and nine months.

7. The appellant now argues that the sentence was manifestly excessive and in particular that the concurrent sentences for aggravated endangering life and aggravated recklessly causing serious harm were manifestly excessive.  There appears to be no argument concerning the accumulation of the other penalties. 

8. The appellant argues that the Judge erred in the methodology used in arriving at the impugned sentence, in particular by his reference in his remarks to the need for sentences “which are a substantial proportion of the prescribed maximum”.  The appellant also argues that the sentencing Judge has not given enough weight to comparative sentences for like offending, nor has he given enough weight to the mental state of the appellant both leading up to and at the time of the offending behaviour which occurred on 25 May 2010. 

   The offending

9. The sentencing Judge had the advantage of an agreed basis of fact upon which to sentence.  In relation to the offences that took place on 25 May 2010 (aggravated endangering life, aggravated recklessly causing serious harm and possessing a firearm without a licence), it is apparent that at about 5.15am on the morning of 25 May 2010 the appellant telephoned the Elizabeth police station claiming he had a drunk female at his house who was refusing to leave and was in need of police attendance.  He was told to call the SAPOL call centre.  Two minutes later the appellant did so and told the police officer who answered the call at that centre that he had a drunk female at his house who was being abusive, but also stated that he himself had a history of being violent and the police did not like him.  The two victims, Constable Mulholland and Probationary Constable Tran who were on duty at the Salisbury police station, were asked to attend the appellant’s premises at 10 Thorngate Drive, Paralowie and arrived some time before 5.30am.  They walked to the front door of the house and the area was described as being in total darkness.  A solid front door was open but there was a screen door.  On approaching the porch leading up to the door, the officers became aware of the appellant standing inside the house behind the screen door facing them.  When he was about a metre from the door Constable Mulholland saw that the appellant was holding something to his left side and he heard the appellant say “You’ve been set up”.  The appellant then fired one shot from a Colt AR .223 rifle in the direction of the officers.  The screen door was constructed of an aluminium frame with a series of vertical bars and mesh on the inside of the door.  The projectile passed through the mesh and struck a vertical bar.  As a result shrapnel travelled in the direction of the officers injuring both of them.  Both officers then understandably ran and the appellant said in a loud voice words to the effect that he had plenty of ammunition and they should get the STAR force onto him.

10. Constable Mulholland was treated at the Lyell McEwen Hospital for wounds to the left side of his face and a wound to his left palm.  Such wounds necessitated surgery to remove shrapnel.  Probationary Constable Tran was more severely wounded.  He suffered four small wounds to his right forearm, one small wound to his left upper arm, and several small wounds across his chest.  He had four wounds on the right side of his face and further wounds to his scalp.  His right eye was swollen over and required surgery to remove foreign bodies.  Subsequent eye testing indicated that he had suffered an induced loss of vision from the injury.  Although that improved, he has been left with a permanent central corneal scar.  His prognosis is that he will suffer a long term glare and mild reduction of the vision of his right eye.

11. After the shooting, Mulholland called for assistance and further police arrived at the scene.  The appellant was observed to be on the roof of the adjoining premises.  He came down and surrendered to the police. 

12. A blood sample was taken from the appellant at 12.54pm on 25 May 2010.  When analysed it revealed that the appellant’s blood contained 0.221 per cent of alcohol.  A Colt AR 15 semi-automatic rifle was seized from the roof of the adjoining premises and it was loaded with a single cartridge.  That firearm was the subject of the plea of guilty to possessing a firearm without a licence. 

13. It was also accepted that on 24 May 2010 the appellant’s aunt, Ms Parisi, had tried unsuccessfully to get the appellant an appointment with several doctors as well as trying to get him admitted to various hospitals.  She was concerned that the appellant was suicidal.  At 5.30pm on 24 May 2010 the appellant telephoned the Mental Health Triage Emergency Call Centre and said to one of the nurses that he wanted to set police up so he could line them up and shoot them.  The nurse was of the view that the comment was a throwaway line.  It was also agreed that the appellant told that nurse that he had been drinking for three days.

14. In relation to the offending which took place on 21 May 2010, the appellant was visited by the female victim with whom he had previously been in a relationship for about five months.  They were not together at the time.  The basis of the charge was that he produced a large gun from a spare room and pointed it at her saying, “You’re not here to fuck with me, are you?”.  He then pointed the rifle into the air and fired a shot.  The appellant then consumed alcohol until he lost consciousness. 

15. It is also agreed by virtue of his plea of guilty that an unlicensed pen gun was discovered at his premises on 26 May 2010. 

    Appellant’s personal and psychiatric background

16. Much detail was placed before the sentencing Judge about the appellant’s personal history and especially his psychiatric problems due to alcohol and drugs.  The appellant was born in 1975.  He completed Year 11 at school, but left in the first term of Year 12.  He worked in the labour hire industry for several years then ran his own car detailing business.  He subsequently completed a Certificate IV in Computer Systems at TAFE and then worked at Optus as a Team Leader.  He then resigned from Optus to work with his father on the housing developments before leaving to travel overseas.  On his return to Australia he worked with his father on an irregular basis until he commenced employment at a Telstra call centre on 6 May 2010.  There was material before the sentencing Judge that he performed well in that employment for a week or two until the commission of these offences. 

17. When the appellant was aged 21 he was involved in a boating accident on the River Murray in which his young cousin, who was aged 17, drowned.  He was traumatised by that incident.  From his late teens onwards the appellant had trouble with alcohol.  He started to binge drink which behaviour increased as he got older.  He also used cannabis and occasionally took cocaine and ecstasy.  He also used amphetamines orally.  This led to psychiatric problems.  The sentencing Judge was provided with reports from Dr Craig Raeside,[1] Dr Jorg Strobel[2] and Mr Allen Fugler.[3]  I will deal with those when discussing the grounds of appeal.

    [1]    28 July 2010, 31 August 2010 and 31 August 2011.

    [2]    24 July 2011.

    [3]    5 August 2011.

18. The appellant had a history of relatively minor offending, the most serious of which was for assault police mentioned above. 

19. From early 2009 up until the time of the present offending the appellant was having trouble with alcohol and drugs.  In May 2009 he was referred to a psychiatrist, Dr Strobel, who saw him on three occasions during that year.  In April 2010 he was admitted to the Adelaide Clinic under the care of another psychiatrist, Dr Kelly, because of his heavy alcohol consumption.  Since the offending he has been attended by Dr Raeside and Mr Fugler.  There appears to be no dispute that in the days leading up to the offending on 25 May 2010 the appellant was continually and severely affected by alcohol.  In fact the sentencing Judge found that on 25 May 2010 the appellant’s alcohol concentration would have been close to 0.3 per cent and it is most likely that it had been like that for some days.  Dr Raeside came to the conclusion that, at the time of the offending, it is likely that the appellant was suffering from both depression as well as paranoia (but without a psychotic illness).  Both Dr Strobel and Mr Fugler agreed with that diagnosis.  According to Dr Raeside such depressive symptoms were obviously complicated by drug and alcohol abuse. 

    Appeal

20. The appellant argues in this Court that the sentence is manifestly excessive.  In essence, he argues that the component of the sentence which involves endangering life and recklessly causing serious harm is so severe as to amount to error.  The appellant further argues that the sentencing Judge has erred in that:

    (a)he has approached the matter incorrectly by relating the severity of the behaviour as a proportion of the maximum penalty.  The appellant argues that such an approach is wrong in principle.

    (b)irrespective of what approach was taken, the sentence was outside the range of sentences for like offending.

    (c)the sentencing Judge did not give enough regard to the mental impairment of the appellant.

    I deal with each in turn.

    Head sentence is a “substantial proportion” of maximum penalty

21. At the conclusion of his sentencing remarks, just before announcing the sentences, the Judge said “[t]he abovementioned considerations overall call for sentences which are a substantial proportion of the prescribed maximum”.  The appellant now seizes upon this remark to argue that the sentencing Judge has erred in law in the way he has approached the matter.  Mrs Shaw QC, for the appellant, puts to this Court that that is an erroneous approach and that a sentence must be proportionate to the circumstances of the offence and of the offender having regard to those factors set out in the Criminal Law (Sentencing) Act 1988 (SA) and general sentencing principles. She argues that to arrive at a sentence on the basis of it being a proportion of the maximum is wrong. In support of her argument Ms Shaw QC refers in particular to the decision of Inge v The Queen[4] which dealt with the setting of a non-parole period when the head sentence was one of life.  That case dealt with the difficulty of determining an appropriate non‑parole period for a relatively young offender convicted of murder and therefore liable to a head sentence of life imprisonment.  The High Court held that it did not follow that it was appropriate in those circumstances for a non‑parole period to bear a proportionate relationship with the likely term of the prisoner’s natural life. 

    [4] (1999) 199 CLR 295.

22. Such considerations are entirely different in the situation of the present case.  In sentencing it is appropriate for a sentencing Judge to be conscious of the maximum penalty.  However, in the present case on reading his sentencing remarks as a whole, the Judge did not simply compare the behaviour for which the appellant was to be sentenced with the maximum penalties and then set a proportional figure.  What he was saying in the abovementioned remarks was that at the end of the day looking at all the matters the sentence was in fact a substantial proportion of the prescribed maximum.  That is the conclusion he came to after dealing with the matter in the appropriate way.  The Judge carefully and accurately set out the background of the offending and accurately described the offending itself.  He carefully and accurately related the injuries to the victims and, in great detail, went into the state of mind and the state of sobriety of the appellant leading up to and during the offending.  The Judge then carefully dealt with the psychiatric evidence concerning the appellant including consideration of the appellant and his future prospects. 

23. The sentencing Judge then categorised the offending.  He said:

    Characterisation of the offending

    The offence of aggravated causing serious harm to Constable Tran is a very serious instance of this offence. 

    Even allowing for your state of intoxication you must have clearly foreseen a high probability that Constable Tran would suffer serious harm. The circumstance of aggravation that Constable Tran is a police officer also calls for a substantial penalty which effects a high level of general deterrence for two reasons. First, the State’s police force needs and deserves a high level of protection for undertaking the dangerous duty of protecting the public. Secondly, the safety of the community depends on its police officers acting immediately in the face of danger but offences like this engender doubts and hesitation. Ultimately, the actual harm suffered by Constable Tran was not as serious as it might have been but that is the result of surprising good fortune.

    The offence of endangering the life of Constable Mulholland is also amongst the more serious examples of that offending.  Again, even allowing for your state of intoxication your appreciation of the extent to which the life of the police officer was endangered was great.

    The possession of firearms by unlicensed persons is properly a matter of great community concern. Your persistent disregard of this aspect of the criminal law in potentially dangerous circumstances requires condign punishment.

    As a result of that characterisation set against those matters personal to the appellant which he went into, the Judge came to the inevitable conclusion that the seriousness of the offending meant that the sentence would be a substantial proportion of the prescribed maximum.  I can see no error in his approach. 

24. I would dismiss that ground of appeal.

    Adequacy of consideration of matters personal to the appellant

25. I reject this ground of appeal.  The sentencing Judge set out in detail the appellant’s personal and family circumstances, antecedents, and referred to the psychiatric and psychological material that was placed before him and dealt with the appellant’s future prospects and matters of rehabilitation.  The Judge obviously carefully considered each matter.  When dealing with the appellant’s personal circumstances, the Judge carefully set out the tragic incidents which had apparently led the appellant to be involved in alcohol and drugs.  The Judge also set out the difficult time that the appellant had in 2009 which led him to seek the assistance of Dr Strobel.  However, the Judge found that the impaired reasoning and psychological disturbance were caused by the excessive consumption of alcohol leading up to the principal offences.  This was not simply a case of mental illness leading to causing the offending.  Rather it was the appellant’s excessive drinking.  The Judge had regard to the appellant’s state of mind on the days leading up to 25 May 2010 and had regard to his mentally disordered state (short of incapacity) during the offending.  It is clear that the matters personal to the appellant, including his psychiatric history and state, were taken into account in arriving at sentence.  But these aspects of the matter were secondary to the appellant’s binge on liquor.

1. This matter was originally listed for hearing on 22 May 2012.  (There was an even earlier hearing which was vacated at the request of the appellant’s counsel, but there is no need to mention that further).  On 18 May 2012 the Court received a letter from the appellant’s solicitor asking that the matter be adjourned so that some sort of “review” or report about the actions of the triage nurse who took the appellant’s call on 24 May 2010 could be placed before the Court.  The Court heard the application orally on 22 May.  Senior counsel for the appellant was unable to elucidate in what way such a report could assist this Court.  However, the Court indicated that it was minded to allow a limited adjournment so that the new material could be obtained and presented.  The Court intimated that no inference should be drawn that the material was seen to be relevant and that the Court would not be disposed to grant any further adjournment should the material not be obtained as expected.  A new hearing date of 26 June was fixed.

2. Prior to the new hearing date a further letter from the appellant’s solicitors was received asking for another adjournment.  The Court indicated that it would not adjourn the matter further but would be prepared to receive, in affidavit form, the new material provided it was received by 29 June 2012.  When the oral submissions proceeded on 26 June senior counsel for the appellant was further pressed about the potential relevance of the conduct of the triage nurse.  Mrs Shaw QC was unable to explain how any internal assessment of the nurse’s reaction to the appellant’s call could have any impact on the sentencing of the appellant.

3. The new material was not received by 29 June 2012.  In my view the new material could not have any impact on the outcome of this matter.  I would stress that this Court is not in a position to make any assessment of the responses of the triage nurse in the difficult circumstances facing her.  Moreover, it is unnecessary to do so.  Any assessment of that person’s conduct could not have any bearing on this appeal.

4. I would dismiss this ground of appeal.

   Manifestly excessive – especially due to comparative sentencing

5. The appellant, over and above these arguments, put that the sentence was manifestly excessive.  Without allowing for the benefit given for his pleas of guilty for the two major charges, the head sentence is a concurrent one of approximately 15 years imprisonment for an offence with a maximum penalty for the more serious of the two offences of 19 years imprisonment.  Mr Illingworth, for the respondent, in this Court concedes that that is the highest head sentence for either of these statutory offences in this State.  Mrs Shaw QC argues that, when looking at comparative sentences, there is no sentence anywhere near it.  In particular, she points to the next closest which is a sentence imposed by Justice Perry of a head sentence of nine years for three counts of endangering life (reduced from a starting point of 11 years) with a non-parole period of six years.  In that case the defendant fired four shots in the direction of a group of people at a nightclub whilst driving by.  At least two people were struck.  That is the next most severe sentence for offending against either of these sections.  Mrs Shaw QC argues that by any form of comparative analysis the present sentence is manifestly excessive. 

6. The learned sentencing Judge in the present case characterised the offending in the following way:

   I find that in your drunken, disinhibited, paranoid and angry mental state you conceived a plan to trap and injure the police officers. The plan was as dangerous as it was bound to lead to your apprehension and severe punishment. Your ambivalence about the plan is shown by your earlier disclosure to the mental health triage nurse and your own attempts to obtain treatment for your condition. Ultimately, however, it was your own conduct which resulted in the offending for which you must now take responsibility. Even though your motives for these offences were irrational, the way in which your plan was executed shows that you retained a significant intellectual capacity. Your admittedly futile attempts to evade responsibility by the selective and often false answers you gave to the police show that you were very aware of the consequences of your conduct.

   Notwithstanding the inference which could be drawn from the words spoken by you immediately before shooting the constables and the very circumstances of the shooting I cannot sentence you on the basis that you intended to cause very serious harm to either of the constables.

   An aggravated offence of intending to cause serious harm carries a maximum term of imprisonment of 25 years but it is not the offence of which you have been convicted. I, therefore, cannot sentence you on that basis even if I were satisfied beyond reasonable doubt on the material before me that that was your intention.

   As to the offence against Constable Tran, you are to be sentenced on the basis of recklessness, that is, that whatever your intention was you nonetheless saw the probability that you would, by discharging the rifle, cause Constable Tran serious harm. The charge relating to Constable Mulholland alleges an intentional or reckless endangerment of his life. I find beyond reasonable doubt that, for reasons arising out of your resentment of police in your drunken state, you intended to endanger Constable Mulholland’s life in the sense of creating a risk of death, even though you may have been indifferent to his ultimate fate.

7. In my view the sentencing Judge was correct in his description of the offending.  It is hard to imagine a worse case of offending against either of these sections.  The disturbing feature was that it involved a planned attack against two police officers carrying out their duties.  The appellant deliberately armed himself in pursuance of that plan and he was in such a disinhibited state to make his behaviour even more dangerous.  The shot that was fired towards the police officers was at point blank range and at a time when the appellant was subject to a suspended sentence in relation to assaulting police.  It is hard to imagine a worse case.

8. In my view the sentence was severe but appropriately so and no sentencing error has been demonstrated. 

9. I would dismiss this ground of appeal.

   Conclusion

10. I would dismiss the appeal.

11. PEEK J:   I agree with David J that the appeal should be dismissed.