SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WAKEFIELD
[2015] SASCFC 10
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Blue)
6 February 2015
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - SENTENCING METHODS
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - EFFECT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant and his brother were charged with aggravated robbery and aggravated intentionally causing harm in relation to a theft of a taxi in April 2013. They pleaded guilty in the Magistrates Court to aggravated robbery but denied an intention to cause harm and contended that the conduct the subject of the causing harm charge was encompassed in the robbery charge.
Ultimately, it was agreed that the appellant and his brother would plead guilty to aggravated recklessly causing harm and in January 2014 a new information was filed in the District Court alleging that offence for the first time as well as the aggravated robbery charge. On the same day, the appellant and his brother pleaded guilty to the new charge. The appellant also pleaded guilty to three counts of failing to comply with a bail agreement.
By the offending committed in April 2013, the defendant breached a good behaviour bond imposed under section 38 of the Criminal Law (Sentencing) Act 1988 (SA) for two counts of using a motor vehicle without consent, in respect of which he had previously been remanded in custody for three months and one week.
A Judge of the District Court sentenced the appellant to imprisonment for seven years, reduced from eight years on account of the guilty pleas, for the aggravated robbery and recklessly causing harm offences. The appellant was sentenced to four months imprisonment for the using a motor vehicle without consent offences to be served cumulatively. A conviction was recorded in relation to the breaches of bail but no further penalty was imposed. A non-parole period of five years and two months was fixed.
The appellant appealed or sought permission to appeal against the sentences on the grounds that:
1. the Judge failed to give adequate reasons for the overall reductions of the guilty pleas;
2. the head sentences were manifestly excessive because adequate credit was not given for the guilty pleas; and
3. the non-parole period was manifestly excessive.
Held by Blue J (Kourakis CJ and Peek J agreeing):
1. When section 10C of the Criminal (Sentencing) Act 1988 (SA) operates to prescribe different maximum discounts for a plea of guilty for different counts in respect of which a sentencing judge utilises section 18A to impose a single penalty, it is usually incumbent on the sentencing judge to identify the notional sentences and discounts for the guilty pleas in the sentencing remarks (at [38]-[39]).
2. When opposing submissions are made to…
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- R v Wakefield [2015] SASCFC 10
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CaseChat Overview and Summary
The central legal issue before the Full Court was whether the sentencing judge had erred in his application of section 10C of the Sentencing Act 1991 (SA), which governs the reduction of sentences for guilty pleas in certain courts. Specifically, the court considered whether the judge was required to identify separate starting sentences and separate discounts for each offence, or if a global approach to sentencing, incorporating a single discount for a guilty plea, was permissible. The court also considered whether the judge's failure to explicitly identify these separate elements vitiated his exercise of the sentencing discretion.
The Full Court reasoned that while section 10C outlines specific time bands and corresponding maximum percentage reductions for guilty pleas, and subsection 10C(4) requires regard to various factors in determining the appropriate reduction, the sentencing judge's failure to articulate separate starting sentences and discounts did not necessarily invalidate the overall sentencing decision. The court acknowledged the Director's submission that the judge's approach was not ideal but contended that it did not fundamentally undermine the discretion exercised.
Ultimately, the Full Court allowed the appeal, setting aside the original sentences. The court resentenced the defendant, imposing a total period of imprisonment of five years and eleven months, with a non-parole period of two years and eleven months. A mandatory licence disqualification of 12 months was also imposed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
The Director opposes the grant of permission to amend and, without resiling from the submission that the Judge ought to have identified separate starting sentences and separate discounts, contends that the Judge’s failure to do so did not vitiate his exercise of the sentencing discretion.Operation of the legislative scheme Section 10B of the Sentencing Act applies to sentencing by the Magistrates Court and to sentencing by other courts for matters dealt with as summary offences. Section 10C applies to sentencing by the District, Youth and Supreme Courts for matters other than those dealt with as summary offences. Subsection 10C(2) empowers a sentencing court to reduce, by reason of a defendant pleading guilty, the sentence that it would otherwise have imposed by a percentage up to a prescribed maximum depending on the timing and circumstances of the guilty plea and defines four consecutive time bands for this purpose. Subsection 10C(3) gives to the sentencing court a discretion to make a reduction apposite to an earlier time band when the only reason that the defendant did not plead guilty during that earlier time band was that the court was, for a reason outside the control of the defendant, unable to hear the defendant's matter during that time band. Subsection 10C(4) prescribes criteria to which the sentencing court is required to have regard in determining the percentage by which a sentence is to be reduced. Section 10C of the Sentencing Act relevantly provides:10C—Reduction of sentences for guilty plea in other cases...(2) If a defendant has pleaded guilty to an offence or offences—(a)not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;(b)more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;(c)during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending 12 weeks after the first date fixed for the arraignment of the defendant (other than in the circumstances referred to in paragraph (d))—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;(d)during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;(e)within 7 days immediately following—(i)an unsuccessful application by or on behalf of the defendant to quash or stay the proceedings; or(ii)a ruling adverse to the interests of the defendant in the course of a hearing of the proceedings,determined during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending not less than 5 weeks before the commencement of the trial—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;(f)in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.(3) If—(a)a maximum reduction available under subsection (2) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and(b)the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—(i)the court did not sit during that period; or(ii)the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or(iii)the court did not list the defendant's matter for hearing during that period; or(iv)the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period,the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.(4)In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:(a)whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would shock the public conscience;(b)the stage in the proceedings for the offence at which the defendant indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);(c)the circumstances surrounding the plea;(d)in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;(e)if the defendant satisfies the court that he or she could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—that fact;(f)whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,and may have regard to any other factor or principle the court thinks relevant.