R v Wakefield
[2015] SASCFC 10
•6 February 2015
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 a sentencing judge about the operation of section 10C and the maximum discount prescribed by that section, it is incumbent on the sentencing judge to identify the applicable provision of section 10C and the maximum discount ruled to be applicable (at [40]).
3. In circumstances in which the parties made opposing contentions about the maximum discount available and the Judge utilised section 18A to impose a single penalty, the Judge erred in failing to identify the discount or discounts allowed in respect of the separate counts vitiating the exercise of the sentencing discretion (at [43]-[45]).
4. A notional starting point of eight years imprisonment is appropriate for the aggravated robbery count. The whole of the appellant's criminal conduct in the taxi was encompassed in that sentence and it is not appropriate to impose a separate sentence for the recklessly causing harm count (at [48], [51], [58], [69]).
5. Appellant re-sentenced to imprisonment for five years and eight months for aggravated robbery, no further penalty imposed for aggravated recklessly causing harm and sentenced to imprisonment for three months, for using motor vehicles without consent cumulative upon the aggravated robbery sentence. Non-parole period fixed of two years and 11 months (at [75]-[76]).
Bail Act 1985 (SA) s 17; Criminal Law Consolidation Act 1935 (SA) s 24, s 25, s 86A, s 137(1); Criminal Law Sentencing Act 1988 (SA) s 10C, s 18A; Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA) Sch 1; Road Traffic Act 1961 (SA) s 46(1), referred to.
R v Daniele [2014] SASCFC 22; R v Major (1998) 70 SASR 488; R v McPhee [2014] SASCFC 107; R v Perdikoyiannis (2006) 86 SASR 262, discussed.
R v Bagnato [2011] SASCFC 161, (2011) 112 SASR 39; R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 398; R v Crabbe (1985) 156 CLR 464; R v D, WD [2013] SASCFC 32, (2013) 116 SASR 99; R v Gardiner [2012] SASC 160; R v Lane [2011] SASCFC 101; R v Lovegrove [2007] SASC 283; R v Nylander [2003] SASC 191, (2003) 228 LSJS 24; R v Perdikoyiannis [2003] SASC 310, (2006) 86 SASR 262 ; R v Van der Horst [2006] SASC 243; R v Winner (1989) 39 A Crim R 180; Dreezer v Duvnjak (1996) 6 Tas R 294; Glouftsis V Police [2014] SASC 136, (2014) 120 SASR 420, considered.
R v WAKEFIELD
[2015] SASCFC 10Court of Criminal Appeal: Kourakis CJ, Peek and Blue JJ
KOURAKIS CJ: I would allow the appeal for the reasons given by Blue J. I would join in the orders he proposes.
PEEK J: I would allow the appeal. I agree with the orders proposed by Blue J and with his reasons.
BLUE J: This is an appeal against sentence.
This appeal raises for the consideration of this Court for the first time the interaction between the new statutory regime[1] governing discounts for guilty pleas under sections 10B and 10C of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) and the statutory regime for imposing a single penalty for multiple offences under section 18A of the Sentencing Act.
[1] Which applies to proceedings instituted on or after 11 March 2013: Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA) Schedule 1.
The appellant defendant, Jake Wakefield, was arrested and charged with aggravated robbery[2] and aggravated intentionally causing harm[3] committed on 19 April 2013. He first appeared in the Magistrates Court on these charges on 31 May 2013. On 30 August 2013 at committal in the Magistrates Court, he pleaded guilty to aggravated robbery, on which he was committed for sentence, and he was committed for trial for aggravated intentionally causing harm. On 22 January 2013 an ex officio information was laid in the District Court charging him with aggravated recklessly causing harm,[4] to which he pleaded guilty. By committing these offences, he breached a good behaviour bond earlier imposed under section 38 of the Sentencing Act in the Magistrates Court relating to two counts of using a motor vehicle without consent.[5] He also pleaded guilty to three counts of failing to comply with a bail agreement.[6]
[2] Criminal Law Consolidation Act 1935 (SA) s 137(1).
[3] Criminal Law Consolidation Act 1935 (SA) s 24(1).
[4] Criminal Law Consolidation Act 1935 (SA) s 24(2).
[5] Criminal Law Consolidation Act 1935 (SA) s 86A.
[6] Bail Act 1985 (SA) s 17.
The defendant was sentenced to imprisonment for seven years, reduced by 12.5 percent from a starting point of eight years imprisonment on account of his guilty pleas, by way of a single penalty pursuant to section 18A of the Sentencing Act for the offences of aggravated robbery and aggravated recklessly causing harm. He was sentenced to imprisonment for four months for the two counts of using a motor vehicle without consent, to be served cumulatively upon the expiration of the seven year sentence, and had his driver’s licence disqualified for 12 months. In relation to the three counts of failing to comply with a bail agreement, a conviction was recorded but no further penalty was imposed. In respect of the sentences totalling seven years and four months, a non-parole period of five years and two months was fixed.
The defendant appeals or seeks permission to appeal against the sentences on the following grounds:
1.the Judge failed to give adequate reasons for the overall reductions for the guilty pleas;[7]
2.the head sentences were manifestly excessive because adequate credit was not given for early guilty pleas;[8] and
3.the non-parole period was manifestly excessive.[9]
[7] Permission to amend the notice of appeal and permission to appeal sought on the hearing of the appeal.
[8] Permission to amend the notice of appeal and permission to appeal sought on the hearing of the appeal.
[9] Permission to appeal granted by a Judge by consent.
Factual circumstances
On 29 November 2012, the defendant and another had consumed an excessive amount of alcohol when they stole a vehicle in Robe and drove it to Meningie. They then stole another vehicle in Meningie and drove it until they were intercepted by police. The defendant was arrested and charged with two counts of using a motor vehicle without consent. He was remanded in custody. On 29 January 2013, he pleaded guilty and was further remanded in custody for sentencing submissions.
On 4 March 2013, a Magistrate heard sentencing submissions. He noted that the defendant had spent three months and one week in custody and expressed the view that this was an appropriate penalty in terms of imprisonment. He ordered under section 38 of the Sentencing Act that the defendant be released without being sentenced upon entering into a bond to be of good behaviour for 18 months.
On 19 April 2013 at about 11.00 pm, the victim of the aggravated robbery and aggravated recklessly causing harm offences, Mr Khalid, was returning to his taxi at Ashford after a meal break. He was approached by the defendant and his older brother, Zackary Wakefield, who requested that he drive them into the city. Upon observing that they appeared to be drunk and possibly under the influence of drugs, Mr Khalid asked them to pay a deposit of $10. They refused and Mr Khalid asked them to leave the taxi.
CCTV footage from the taxi shows that each of the defendant and his brother subsequently drew 25 centimetre knives. The defendant, who was sitting in the front passenger seat, jabbed at Mr Khalid with his knife. The defendant’s brother, who was in the middle of the back seat, lent forward, put his hands around Mr Khalid’s chest and held his knife to Mr Khalid’s throat. Mr Khalid struggled and put his hands up to his throat. Mr Khalid suffered lacerations to three fingers of his left hand and a 15 centimetre laceration to his throat in the course of the struggle. These injuries were not particularly serious, but the incident understandably had a significant mental effect upon him.
Mr Khalid drove a short distance while the defendant and his brother continued to yell at him, telling him to stop the taxi and they would drive it. Mr Khalid pointed out the camera in the taxi. There was another struggle. Mr Khalid escaped the taxi and flagged down another taxi, which took him to the Royal Adelaide Hospital where he received medical treatment.
After Mr Khalid escaped, the defendant’s brother got into the driver’s seat and drove the vehicle for about four kilometres before crashing into a store at Brooklyn Park.
The defendant was arrested on 20 April 2013. He entered into a bail agreement which imposed a curfew. On 22 April 2013, he was twice absent when police attended at his house during curfew hours and he also failed to report to the police station. He was arrested and remanded in custody on 26 April 2013. He was charged with three counts of breaching his bail agreement.
The defendant was born in June 1993 and was 19 years old at the time of the offending in November 2012 and April 2013. His parents separated soon after he was born and he and his brother experienced unsettled and unhappy childhoods in Tasmania which involved constantly moving and attending ten or more schools. Their mother was married five times and they both had a very poor relationship with their father. They spent time in boys’ homes, having no fixed abode for periods of their teenage years.
By the age of 14, the defendant had left school and started drinking and taking illicit drugs. He has several prior convictions or findings of guilt in the Court of Petty Sessions of Tasmania. He was found guilty without conviction for offences committed as a child including burglary and stealing in early 2009, robbery in mid-2009; aggravated burglary, motor vehicle theft and assaulting a police officer in late 2009 to early 2010; burglary, stealing and motor vehicle theft in late 2010; and motor vehicle theft in early 2011. He generally entered into good behaviour bonds in respect of these matters, although in April and October 2010 he was sentenced to detention for one month and two months respectively, each suspended upon his entering into a good behaviour bond. He was convicted as an adult in August 2012 for offences including four counts of common assault committed in late 2011, for which he was sentenced to imprisonment for eighteen months suspended upon entering into a good behaviour bond. His counsel submitted that these court appearances in Tasmania had their genesis in drugs and alcohol and most of the crimes had been opportunistic to obtain money to support his drug habits, coupled with criminal behaviour while under the influence of drugs or alcohol.
The defendant moved to Adelaide in 2012 for a fresh start, which did not transpire because he had not resolved his problems with alcohol and drug abuse. A month after entering into the good behaviour bond on 4 March 2013, he began what was described by his counsel during sentencing submissions as a “13-day bender” of drug bingeing on intravenous methylamphetamine and alcohol abuse. This culminated in the offending on 19 April 2013. The defendant accepted through his counsel that his addiction to illicit substances and alcohol provided no excuse but submitted that it provided an explanation for the offending. The defendant acknowledged that this was a very frightening incident which resulted in physical injuries and mental damage suffered by Mr Khalid and warranted an immediate custodial sentence.
The defendant has a three year old son with his partner who has now also moved to Adelaide. He holds Certificates II and III in building and construction and hopes to obtain employment in carpentry and bricklaying in the future. It was submitted by his counsel during sentencing submissions that the defendant is young and is “yet ... to be assigned to the scrap heap of criminal recidivism.” It was submitted that a merciful non-parole period would allow him to rehabilitate and restructure his life with the assistance of the Parole Board and community correctional services.
The proceedings in the Magistrates Court and District Court
On or after 20 April 2013, the Police filed separate informations in the Magistrates Court against the defendant and his brother alleging aggravated robbery[10] and aggravated causing harm with intent to cause harm.[11] The defendant first appeared in the Magistrates Court in relation to these offences on 31 May 2013. On 2 August 2013, the Police filed a fresh information in the Magistrates Court jointly against the defendant and his brother alleging as count 1 aggravated robbery and as count 2 aggravated causing harm with intent to cause harm.[12] This information superseded the earlier informations.
[10] Criminal Law Consolidation Act 1935 (SA) s 137(1).
[11] Criminal Law Consolidation Act 1935 (SA) s 24(1).
[12] The information also alleged as count 3 using a motor vehicle without consent contrary to section 86A of the Criminal Law Consolidation Act 1935 (SA). However, this was subsequently dismissed for want of prosecution.
On 30 August 2013, the defendant and his brother each pleaded guilty to aggravated robbery and indicated not guilty pleas in respect of aggravated causing harm with intent to cause harm. They were committed for sentence on count 1. The defendant was committed for trial on count 2 but his brother was erroneously committed for sentence on count 2.
On 30 September 2013, the defendant and his brother appeared for arraignment in the District Court. The error by the Magistrate in committing the defendant’s brother for sentence on count 2 was discovered and they were not arraigned. The solicitor for the defendants informed the Judge that the contest in relation to count 2 was based upon its subject matter being encompassed within count 1. The defendants were remanded in custody to a directions hearing.
On 18 October 2013, the Director laid a fresh information in the District Court to correct the error in the committal papers. As previously, the information alleged as count 1 aggravated robbery and as count 2 aggravated causing harm with intent to cause harm.[13] On 28 October 2013, the defendant and his brother appeared before the sentencing Judge and pleaded guilty to the fresh count 1. Counsel for the two accused informed the Judge that in relation to count 2 there was no dispute as to identity or that the incident took place; he contended that the plea to count 1 satisfied count 2 because the conduct the subject of count 2 was encompassed within count 1. Counsel acknowledged that strictly speaking there was an additional element to count 2, being intention to cause harm, but contended that the nature of the injuries were not such as to justify the Director proceeding with the intention as part of count 2. On 20 November 2013, counsel for both accused informed the Judge that it was likely that the issue would be resolved on the basis of a plea to the reckless form of count 2 and he was confident that the defendants would agree to this.
[13] The information also alleged as count 3 driving in a manner dangerous to the public contrary to section 46(1) of the Road Traffic Act 1961 (SA). The defendant’s brother, who drove the taxi from Ashford to Brooklyn Park, subsequently pleaded guilty to this offence on 22 January 2014 and the charge against the defendant was not proceeded with.
On 22 January 2014, counsel informed the Judge that the issue had been resolved. The Director handed up a fresh information charging reckless rather than intentional causing harm as count 2 and the accused were arraigned. They both entered guilty pleas to count 1 and the fresh count 2. The defendant also entered guilty pleas in relation to the three counts of failing to comply with a bail agreement.
On 13 March 2014, the defendant admitted the breach of bond and the Judge heard sentencing submissions in relation to all offences. Counsel made submissions concerning the construction and effect of section 10C of the Sentencing Act. The Director submitted that the defendants were entitled to a discount of up to 30 percent in respect of the aggravated robbery but only up to 10 percent in respect of the aggravated recklessly causing harm. Counsel for the defendant and his brother submitted that they were entitled to a discount of up to 30 percent in respect of both counts on the basis that they could not reasonably have pleaded guilty to count 2 because of circumstances outside their control.[14] On 2 April 2014, the Director sent to the Judge a detailed 13 page written submission on the construction and effect of section 10C.
[14] Criminal Law (Sentencing) Act 1988 (SA) s 10C(2)(d).
Sentencing remarks
On 16 April 2014, the Judge sentenced the defendants. In his sentencing remarks, the Judge summarised the circumstances of the offences and of the defendants. The Judge then addressed penalty in the following terms:
Zachary Wakefield, your counsel has urged me not to impose a sentence on you that is crushing, taking into consideration your youth, your contrition and the period of time you have already spent in custody. I am told that you acknowledge the seriousness of your offending and the fact that it warrants a relatively lengthy period of imprisonment.
For the offences of aggravated robbery, aggravated recklessly causing harm and driving in a manner dangerous to the public, I have had regard to both general and personal deterrence. During the course of this violent offending, you attacked someone of particular vulnerability, using weapons, in the company of your brother. Members of our community, particularly those who are vulnerable, must be protected against such acts. General deterrence must play a significant role in sentencing you and your brother. Taxi drivers are particularly vulnerable because they work into the late night and early morning dealing, sometimes, with people who are drunk, under the influence of drugs, nasty, aggressive and often violent. They need the full protection of the law.
For this offending I would have imposed one penalty, pursuant to s 18A of the Criminal Law (Sentencing) Act, of imprisonment for eight years. You pleaded guilty to these offences on 22 January, 2014 after some negotiation between your counsel and the prosecution. To take account of your pleas, I reduce the term of imprisonment to seven years. I fix a non-parole period of five years. This sentence is backdated to commence on 22 April, 2013.
Jake Wakefield, you, too, have accepted that your aggravated offending against Mr Khalid was terrifying and warrants an immediate custodial sentence. For the offences of aggravated robbery and aggravated recklessly causing harm, I would have imposed one penalty, pursuant to s 18A, of imprisonment for eight years. You also pleaded guilty to these offences on 22 January, 2014, after negotiation. To take into account your pleas, I have reduced the term of imprisonment to seven years.
I now turn to your breach of the good behaviour bond imposed by Magistrate McGrath. You have already spent three months and one week in custody in relation to the two counts of illegal use of a motor vehicle. As a result of breaching your good behaviour bond, I impose an additional penalty of four months imprisonment, which is to be served cumulatively upon the sentence relating to the offences of aggravated robbery and aggravated recklessly causing harm. There are therefore sentences totalling seven years and four months. I fix a non-parole period of five years and two months.
Jake Wakefield, so far as your three breaches of bail are concerned, I impose a conviction without further penalty. The seven year sentence and the non-parole period are to commence on 26 April, 2013. ...
Adequacy of reasons for discount
The Judge imposed a single sentence for the offences of aggravated robbery and aggravated recklessly causing harm pursuant to section 18A of the Sentencing Act. The Judge said that he reduced the single sentence from eight years to seven years on account of the guilty pleas entered on 22 January 2014.
The Judge did not address the question that had been argued before him whether different discounts should apply to the two offences due to the differing timing and circumstances in which the guilty pleas were entered. The Judge did not identify whose submissions he accepted concerning the discount maxima applicable. The Judge did not address the question how a discount should be calculated when imposing a single penalty under section 18A of the Sentencing Act when different maxima apply, or are contended to apply, to the individual offences.
The Judge did not identify whether he had notionally determined separate starting head sentences for the individual offences and applied different discounts to each to arrive at a total starting point of eight years and a total single sentence of seven years or whether he had determined a single holistic starting head sentence for the entire conduct and then applied a single discount to arrive at the sentence of seven years. The Judge did not indicate how he arrived at a discount of one year, or 12.5 percent of the starting point of eight years.
The Judge did not refer to the guilty pleas entered by the defendant and his brother in the Magistrates Court on 30 August 2013 to the aggravated robbery count. On the contrary, the Judge’s remarks indicate that he only gave credit to them for the guilty pleas entered on 22 January 2014 in respect of both counts.
The defendant did not, before the hearing of the appeal, seek permission to appeal on the ground that the Judge failed to give adequate reasons for the reductions due to the guilty pleas. In his summary of argument, the Director noted there that there was no such ground of appeal but observed that the Judge applied a total discount of 12.5 percent for both charges combined. The Director observed that, given the different discounts that applied under the legislative scheme, it is incumbent on a sentencing judge to give effect to the mandatory provisions of section 10C. The Director submitted that, in circumstances in which section 18A is utilised and different discounts apply, a sentencing judge must indicate which discounts apply to which offences and state what discount is given for each offence. This, the Director submitted, requires ascribing notional sentences to the separate offences in accordance with the approach identified by Doyle CJ and Olsson J in R v Major.[15]
[15] (1998) 70 SASR 488 at 490 per Doyle CJ and 497-498 per Olsson J.
The defendant adopts these written submissions by the Director and seeks permission to amend the notice of appeal to add as an additional ground that the Judge failed to give adequate reasons for the overall reductions for the guilty pleas. The defendant submits that this failure vitiated the sentencing discretion, as a result of which this Court should sentence the defendant afresh.
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.
Subsection 18A(1) of the Sentencing Act provides:
18A—Sentencing for multiple offences
(1)If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
Since the decision in R v Major,[16] there have been a number of decisions of this Court addressing the appropriateness of identifying separate notional sentences in various circumstances in which section 18A is utilised.[17] It is not necessary to consider the issues raised by those decisions. Section 10C contains mandatory provisions. It not only fixes by subsection (2) a maximum discount referable to the timing of the plea of guilty at the level of individual offences, but it also by subsection (4) prescribes criteria to which the sentencing court must have regard, where relevant, at the level of individual offences.
[16] (1998) 70 SASR 488 at 490 per Doyle CJ, 497-498 and Olsson J.
[17] See, for example, R v Nylander [2003] SASC 191, (2003) 228 LSJS 24 at [81]–[85] per Bleby J (Prior and Sulan J agreeing); R v Van der Horst[2006] SASC 243 at [22]-[23] per Gray J (compare White J at [81]-[92]); R v Copeland (No 2) [2010] SASCFC 61, (2010) 108 SASR 398 at [13]-[32] per Gray J (compare White J at [73] –[89] and Kourakis J at [93] –[110]); R v Bagnato[2011] SASCFC 161, (2011) 112 SASR 39 at [35]-[42] per Gray and Sulan JJ (compare Peek J at [124]-[152]).
When there are different maxima applicable or the prescribed criteria have a differential operation in respect of individual offences, such that the application of section 10C would result in different discounts for the individual offences, the sentencing court is required to apply the prescribed criteria by reference to the respective maximum discounts and arrive at individual discounts for those individual offences. There is no reason why the sentencing court cannot impose a single penalty utilising section 18A, but it must do so by proceeding in the manner prescribed by section 10C.
When a sentencing court utilises section 18A to impose a single penalty and application of section 10C requires differential discounts in respect of the individual offences, the sentencing court is obliged to explain how it has arrived at the single sentence imposed after application of the differential discounts. This, in turn, requires identification of the notional starting head sentences for the individual offences and the notional discounts applied.
When a sentencing court utilises section 18A to impose a single penalty and there is a factual or legal dispute whether the application of section 10C results in differential discounts, it is incumbent on the sentencing court to rule on the dispute and give reasons for its ruling.
When a sentencing court utilises section 18A to impose a single penalty and the parties accept or the court rules that the application of 10C necessarily results in a common discount for all offences dealt with under section 18A, section 10C does not require the sentencing court to determine or identify separate starting points and discounts for the individual offences dealt with under section 18A. Whether the court should do so will depend upon other considerations which it is not necessary to examine for the purposes of this appeal.
When a sentencing court utilises section 18A to impose a single sentence when several sentences would otherwise have been imposed concurrently and the overall sentence will be solely determined by the reduction made to the primary sentence, the court need only give reasons for the reduction made to that sentence.
Failure to articulate reasons for discount
In the present case, the Director contended before the Judge that dramatically different maxima of 30 percent and 10 percent discounts applied to the aggravated robbery and aggravated recklessly causing harm offences. The defendant contended that the same maximum of 30 percent discount applied to both offences as a result of the application of different paragraphs of subsection 10C(2).[18] It was incumbent on the Judge to rule on the competing contentions and identify the discounts applied for each offence.
[18] The defendant contended that in relation to the aggravated robbery section 10C(2)(b) applied and in relation to the aggravated recklessly causing harm section 10C(2)(d) applied.
If the Judge accepted the Director’s contention, he was not permitted by section 10C to apply a discount exceeding 10 percent for aggravated recklessly causing harm and it follows that he could not properly have imposed a discount of 12.5 percent in respect of both offences alike. On the other hand, if the Judge accepted the defendant’s contention that the maximum discount in respect of each offence was 30 percent, there is no apparent reason why the Judge only allowed a discount of 12.5 percent.
On the face of the Judge’s sentencing remarks, the Judge proceeded on the erroneous basis that the defendant only relevantly pleaded guilty to the aggravated robbery offence on 22 January 2014 when he did so on 30 August 2013.
The failure of the Judge to give reasons concerning the calculation of the discount and resulting sentence vitiates the exercise of his sentencing discretion. Permission to amend the notice of appeal to add this ground and permission to appeal should be granted on this ground. It falls to this Court to exercise the sentencing discretion afresh. It is therefore unnecessary to decide the other two grounds of appeal.[19]
Fresh exercise of discretion
[19] Permission should also be granted to amend the notice of appeal to add the ground that the head sentence was manifestly excessive because adequate credit for early guilty pleas was not given. Permission to appeal should be granted on this ground, even though it is not necessary to decide this ground.
Head sentence for aggravated robbery
Robbery comprises the use and/or threat of force to commit theft, being force used or threatened at the time of or immediately before or after the theft.[20] If force is used or threatened independently of, and well before or after the theft, such independent force will not be encompassed in the robbery offence.[21]
[20] Criminal Law Consolidation Act 1935 (SA) s 137(1).
[21] R v Lane [2011] SASCFC 101 at [40] per White J (Doyle CJ and David J agreeing).
The wielding of the knife by the defendant’s brother (in conjunction with the wielding of the knife by the defendant) was the force used and threatened to commit the theft of the taxi. It occurred at the time of, or in any event immediately before or after, the theft of the taxi. The defendant fell to be sentenced on the aggravated robbery count for his responsibility in the joint enterprise with his brother that encompassed the threat and use of force by the wielding of the knife.
The Director accepts that the defendant could have been sentenced for the entirety of his criminal conduct in the taxi under the aggravated robbery count and there was no need for him to be charged with the aggravated recklessly causing harm count to ensure that he was so sentenced. The defendant also accepts this.
If separate sentences were to be imposed, the commonality between the conduct comprising each offence would have called for those sentences to be imposed concurrently. In that event, the sentence imposed for the offence of causing harm would have been significantly less than the sentence imposed for the robbery.
It is therefore appropriate to identify a notional starting head sentence in respect of the aggravated robbery count and then to determine the appropriate discount on the application of the principles set out in section 10C of the Sentencing Act. The conduct the subject of the aggravated recklessly cause harm count is encompassed in the conduct the subject of the notional starting head sentence for the aggravated robbery count.
The maximum penalty for aggravated robbery is imprisonment for life. Both parties accept that the starting point adopted by the Judge of eight years imprisonment is an appropriate starting point for the aggravated robbery encompassing all of the defendant’s conduct in the taxi. Both parties also accept that the maximum discount available pursuant to section 10C is 30 percent.
The evident purpose of the enactment of section 10C is to provide a series of graduated incentives to accused to make early guilty pleas. The section proceeds on the basis that, the earlier a guilty plea is entered, the greater the utilitarian benefit to the community. This purpose evident on the face of the section is confirmed by the second reading speech in relation to the Bill that became the Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA) which introduced sections 10A to 10C into the Act.[22]
[22] South Australia, Parliamentary Debates, House of Assembly, 4 September 2012, p2730 (Vickie Chapman); South Australia, Parliamentary Debates, Legislative Council, 4 September 2012, pp2001, 2008 (Gail Gago).
The purpose of the enactment of section 10C will in general be best achieved by allowing a discount at or close to the maximum permissible discount in a case in which the criteria specified by subsection 10C(4) do not indicate a lesser discount. The primary emphasis of section 10C is on the existence and timing of the guilty plea. This is evident from the structure of subsection (2), the existence of subsection (3) and the fact that each of the criteria identified in paragraphs (b), (c), (d), (e) and (f) of subsection 10C(4) relate to the existence, timing and circumstances of the guilty plea. The evident reason why the legislature specified discount figures as maxima rather than as fixed discounts is that there will be specific reasons in individual cases why it is appropriate to apply a discount less than the figure mentioned in subsection 10C(2).
In R v Daniele,[23] Kourakis CJ said:
...The entry of a plea of guilty in the Magistrates Court on committal to a higher court is a strong indication of a real willingness to assist the administration of justice. There are many offenders who delay, even a seemingly inevitable guilty plea, in the hope of winning a forensic advantage whether by way of bail, a favourable agreed sentencing basis or even an accidental acquittal. Tactical delays needlessly add to trial lists, result in unnecessary directions hearings, and waste limited public funding. More importantly, groundless delays in the finalisation of criminal prosecutions cause unnecessary distress to the victims of crime and undermine public confidence in the effectiveness of the administration of the criminal law. It is important that there be a clear differentiation in the sentence reductions given to offenders who are willing to forego the chance of winning a fortuitous outcome by an early acceptance of responsibility for their offending and those who have no inclination at all to do so.[24]
[23] [2014] SASCFC 22.
[24] Ibid at [2].
In R v McPhee,[25] Nicholson J (Blue J agreeing) said:
In my view, sentencing judges should take a robust view with respect to pleas which satisfy the various criteria set out in s10C relevant to the different maxima provided for. Ultimately, the actual discount provided remains discretionary and each case will need to be determined according to its own facts. Nevertheless, if guilty persons are to be encouraged to plead early so as to provide the utilitarian benefits to the administration of justice contemplated, they will need to be confident that their expectations of a substantial discount in accordance with the requirements of the legislative regime will be met. Related to this is the need for defence counsel to be in a position to advise their clients on this topic with confidence.[26]
[25] [2014] SASCFC 107.
[26] Ibid at [46].
In this case, the defendant pleaded guilty to aggravated robbery in the Magistrates Court on 30 August 2013, which was more than 4 weeks after his first appearance in court in relation to that offence on 31 May 2013, but before he was committed for trial. It is appropriate to allow in favour of the defendant a discount of almost 30 percent from the notional starting point so as to give a head sentence of five years and eight months.
Head sentence for aggravated recklessly cause harm
The parties made detailed submissions before the Judge, and on appeal, whether the maximum discount available under section 10C of the Act for the aggravated recklessly cause harm offence is 30 percent or 10 percent. Because the criminal conduct committed by the defendant on 19 April 2013 for which he stands to be sentenced is encompassed in the aggravated robbery count, it is not strictly necessary for the reasons given below to determine this issue. However, as it was fully argued and it raises issues of general importance, I address this issue.
The defendant was not charged with the offence of recklessly causing harm until the fresh information was laid on 22 January 2014. He pleaded guilty to that offence on the same date. Prima facie, the maximum discount available was 40 percent pursuant to paragraph (a) of subsection 10C(2). Paragraph (a) applies when a defendant pleads guilty not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence.
The Director contends that, after the defendant had been charged in the Magistrates Court, or at least after he had been charged in the District Court, with the offence of intentionally causing harm in contravention of subsection 24(1) of the Criminal Law Consolidation Act 1935 (SA) (the Consolidation Act), it was open to him to plead guilty to the different offence of recklessly causing harm in contravention of subsection 24(2) of the Consolidation Act and he could then have been committed by the Magistrates Court for sentence or in any event sentenced by the District Court without a fresh information being laid charging recklessly causing harm.
The common law treats certain offences (alternative offences) as being automatic alternatives to certain charged offences (charged offences), such that a defendant can be found guilty of, or plead guilty to, the alternative offence on an information for the charged offence without the need to amend the information or lay a fresh information charging the alternative offence. Leaving aside established cases such as manslaughter being an automatic alternative offence on a charge of murder, this common law principle is confined to alternative offences in which the elements of the alternative offence are encompassed in the elements of the charged offence. The alternative offence is described as a lesser offence because it is wholly encompassed by the greater offence being the charged offence.[27]
[27] R v Winner (1989) 39 A Crim R 180 at 181 per Roden (Hunt and Allen JJ agreeing); R v Perdikoyiannis [2003] SASC 310; (2006) 86 SASR 262 at [42]-[43] per Doyle CJ (Besanko and Sulan JJ agreeing).
In R v Perdikoyiannis,[28] Doyle CJ (Besanko and Sulan JJ agreeing) said:
At common law a person charged with an offence may be convicted of an alternative offence not expressly charged if that offence is of the same character as the offence charged and if the offence charged necessarily includes all of the elements of the alternative offence: R v McLaren.
The circumstances in which an alternative and lesser count, not appearing on an information, may be left to the jury and be the subject of a verdict are quite limited. The basic principle is conveniently stated in R v Winner:
[S]uch a verdict may only be returned if each element of the lesser offence of which the accused is convicted is also an element of the greater offence with which he was charged, and has been alleged against him either expressly or by necessary implication in the indictment.[29]
(Citations omitted)
[28] (2006) 86 SASR 262.
[29] Ibid at [42]-[43].
The offences of intentionally causing harm and recklessly causing harm created by subsection 24(1) and subsection 24(2) of the Consolidation Act respectively have a common physical element being causing harm to another. They have different mental elements. The mental element of the offence created by subsection 24(2) that the defendant recklessly causes harm to another is not an element of the offence created by subsection 24(1) that the defendant intentionally causes such harm. Recklessness and intention are different states of mind. An offender who commits an act intentionally desires the proscribed outcome. That offender may also know that that outcome is a probable consequence of his or her conduct but his or her conduct is intentional even if he or she believes that the likelihood of the outcome is no more than barely possible. Conversely, the element of recklessness is defined by section 21 of the Consolidation Act for the purpose, inter alia, of section 25 and requires doing an act despite being aware that there is a substantial risk of causing harm.[30] The offence of recklessly causing harm is therefore not an alternative offence under the common law doctrine.
[30] Compare the common law requirement: R v Crabbe (1985) 156 CLR 464 at 469-70 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ; R v Lovegrove [2007] SASC 283 at [36]-[38] per Nyland J (Anderson and Layton JJ agreeing).
Section 25 of the Consolidation Act provides:
25—Alternative verdicts
If —
(a) a jury is not satisfied beyond reasonable doubt that a charge of an offence against this Division has been established; but
(b) the Judge has instructed the jury that it is open to the jury on the evidence to find the defendant guilty of a specified lesser offence or any 1 of a number of specified lesser offences; and
(c) the jury is satisfied beyond reasonable doubt that the specified lesser offence, or a particular 1 of the specified lesser offences, has been established,
the jury may return a verdict that the defendant is not guilty of the offence charged but is guilty of the lesser offence.
Section 25 creates a statutory alternative verdict regime that applies to charged offences against Division 7A of Part 3 of the Consolidation Act.[31] Section 21 defines the term “lesser offence” relevantly to mean “another offence against this Division … for which a lesser maximum penalty is prescribed”. Accordingly the offence created by subsection 24(2) is a lesser offence vis a vis section 24(1).
[31] Similar statutory alternative verdict regimes are created by sections 19B and 32B when the charged offence is murder or manslaughter, section 75 when the charged offence is rape etc and section 83F when the charged offence is assault etc in respect of criminal activity of a criminal organisation.
However, section 25 is confined in its operation to verdicts by juries. While this operation is extended by subsection 7(4) of the Juries Act 1927 (SA) to verdicts by judge alone[32] and by section 354 of the Consolidation Act to verdicts by this Court on appeal,[33] section 25 is confined in its operation to verdicts after a trial and does not apply to guilty pleas. Section 25 does not in any event apply to proceedings in the Magistrates Court.[34]
[32] R v D, WD [2013] SASCFC 32, (2013) 116 SASR 99 at [43]-[55] per Nicholson J (Anderson and Peek JJ agreeing).
[33] Ibid at [56]-[99] per Nicholson J (Anderson and Peek JJ agreeing).
[34] Glouftsis v Police [2014] SASC 136, (2014) 120 SASR 420 at [55]-[58] per Kelly J.
Accordingly, it was not open to the defendant to plead guilty to recklessly causing harm until the information charging that offence was laid on 22 January 2014. The laying of that information suggests that the Director took this view at the time.
It follows that the maximum discount available in respect of the aggravated recklessly causing harm count was 40 percent. However, subsection 10C(4)(c) requires a sentencing court to take into account, where relevant, the circumstances surrounding the plea. On the one hand, the defendant first appeared in court in relation to the charge of aggravated intentionally causing harm on 31 May 2013 and could have earlier offered to plead guilty to aggravated recklessly causing harm if a fresh information were laid charging that offence. On the other hand, the police could have included a charge of aggravated recklessly causing harm as a charged alternative before the committal and the defendant and his brother did indicate to the Judge on 30 September, 28 October and 20 November 2014 that they admitted the physical element of the charge of aggravated intentionally causing harm and only disputed the mental element of intent and raised the issue of overlap. For these reasons, if it had been appropriate to determine a notional substantive sentence on count 2, it would have been appropriate to allow a discount of approximately 30 percent.
The notional starting point for the aggravated robbery count of eight years encompasses the defendant’s criminal conduct in the taxi and application of an appropriate discount results in a sentence of five years and eight months. For this reason, if section 18A of the Sentencing Act were to be utilised, it would be appropriate to impose a single head sentence of five years and eight months in respect of both the aggravated robbery count and the aggravated recklessly cause harm count. However, the appropriate course in the circumstances is to impose no further penalty for the aggravated recklessly causing harm offence.
Head sentence on two counts of using a motor vehicle without consent
The Judge imposed a single head sentence of imprisonment for four months on the two counts of using a motor vehicle without consent utilising section 18A of the Sentencing Act. The defendant had already served time in custody of three months and one week on these counts before coming before the Magistrate for sentencing on 4 March 2013. The Judge did not indicate the starting head sentence before reduction for time spent in custody or due to the defendant’s guilty pleas. In the circumstances, the Judge should have indicated the starting head sentence for this offending and the discount allowed for the pleas of guilty and time in custody to result in the head sentences imposed of imprisonment for four months.
The maximum penalty for using a motor vehicle without consent is imprisonment for two years[35] and it is therefore a summary offence.
[35] Criminal Law Consolidation Act 1935 (SA) s 86A(1).
On resentencing, it is appropriate to utilise section 18A of the Sentencing Act. I would adopt a starting point of imprisonment for nine months and would reduce that by two months and three weeks (approximately 30 percent) on account of the defendant’s guilty pleas.[36] This results in a sentence of imprisonment of six months and one week. Taking into account that the defendant spent three months and one week in custody on these charges, I would impose a sentence of imprisonment of three months. I would also impose a mandatory driver’s licence disqualification of 12 months.[37]
[36] Section 10B of the Sentencing Act does not apply to sentencing from these offences because the proceedings in the Magistrates Court were instituted before its introduction into the Sentencing Act.
[37] Criminal Law Consolidation Act 1935 (SA) s 86A(2).
Head sentence on three counts of breach of bail
In relation to the defendant’s guilty pleas relating to three breaches of bail, the Judge’s approach to sentencing was appropriate.
Non-parole period
The total of the sentences for the offending on 29 November 2012 and 19 April 2013 is five years and eleven months.
Given the defendant’s background, youth, expression of contrition and other circumstances, it is appropriate to fix a relatively generous non-parole period of two years and eleven months.
Conclusion
I would grant permission to the defendant to amend the notice of appeal and grant permission to appeal on the additional grounds. I would allow the appeal. I would set aside the sentences imposed by the Judge for the offending on 29 November 2012 and 19 April 2013.
I would resentence the defendant to imprisonment for five years and eight months for the offence of aggravated robbery commencing on 26 April 2013 and impose no penalty for the offence of aggravated recklessly causing harm. I would impose a single penalty pursuant to section 18A of the Sentencing Act of imprisonment for three months for the two counts of using a motor vehicle without consent, cumulative upon the sentence for aggravated robbery.
This gives a total period of imprisonment of five years and eleven months. I would fix a non-parole period of two years and eleven months commencing on 26 April 2013. I would also impose a mandatory licence disqualification of 12 months to commence upon the defendant’s release.
23
17
1