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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Van Setten

Details

AGLC: R v Van Setten [2012] SASCFC 90
Case: [2012] SASCFC 90
Decision Date: 1 August 2012

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, who had pleaded guilty to aggravated endangering life, aggravated recklessly causing serious harm, two counts of possessing a firearm without a licence, and aggravated assault. The appellant also admitted breaching a suspended sentence bond. The sentencing judge indicated that without the guilty pleas, a head sentence of 15 years and four months would have been imposed. The judge ultimately imposed a total head sentence of 14 years and three months, revoking the suspended sentence and ordering it to be served cumulatively, resulting in a total head sentence of 14 years and six months, with a non-parole period of nine years and nine months. The appeal argued that the sentence was manifestly excessive and that the judge erred in concluding the seriousness of the offending warranted a substantial proportion of the maximum penalty, and failed to adequately consider personal matters of the appellant.

The court was required to determine whether the sentence imposed was manifestly excessive, whether the sentencing judge erred in assessing the seriousness of the offending in relation to the maximum penalty, and whether sufficient regard was given to the appellant's personal circumstances. The appellant's personal history, including significant psychiatric problems stemming from alcohol and drug abuse, a traumatic boating accident, and a history of relatively minor offending, were central to the arguments regarding the adequacy of the sentencing judge's considerations.

The court dismissed the appeal, finding that while the sentence was severe, it was appropriately so and no sentencing error had been demonstrated. The court held that the sentence was not manifestly excessive and that the sentencing judge had not erred in concluding that the seriousness of the offending justified a sentence representing a substantial proportion of the prescribed maximum. The court noted that the sentencing judge had meticulously detailed the appellant's personal and family circumstances, antecedents, and psychiatric and psychological material, and had addressed the appellant's future prospects and rehabilitation. The court found that while the appellant's personal circumstances, including his psychiatric history, were taken into account, they were secondary to the appellant's excessive alcohol consumption leading up to the offences.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would dismiss this ground of appeal.Conclusion I would dismiss the appeal. PEEK J: I agree with David J that the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

I would dismiss that ground of appeal.Adequacy of consideration of matters personal to the appellant 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. 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. 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.