R v WRIGHT
[2019] SASCFC 128
•18 October 2019
Supreme Court of South Australia
(Court of Criminal Appeal)
R v WRIGHT
[2019] SASCFC 128
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Auxiliary Justice David)
18 October 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
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
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE
This is a Crown appeal against sentence.
The respondent pleaded guilty to eight offences including assault, attempted robbery and aggravated causing harm with intent to cause harm. The offending took place over a period of just over one hour. Two of the offences were against responding police officers, one of whom sustained injuries which has impacted his ability to work.
The respondent has underlying mental health issues which were exacerbated by his consumption of a substantial amount of alcohol on the day of the offending.
The sentencing Judge characterised the offending as unusual and bizarre. He also had regard to the respondent’s good character when imposing a number of penalties, including a suspended sentence, for the offending.
The Crown contends that:
1. The one year good behaviour bond imposed for attempted robbery offence (count 5) is manifestly inadequate and attended by a material error as to the factual basis of the offence; and
2. The sentence of 11 months and 22 days (suspended on a two-year bond) for aggravated assault and causing harm with intent to cause harm (counts 7 and 8) is manifestly inadequate.
Held by Parker J (Kelly J and David AJ agreeing) allowing the appeal:
1. The sentence imposed for count 5 was not attended by material error. It is clear that sentencing was to occur in accordance with facts set out in witness declarations. The sentence for count 5 is not manifestly inadequate having regard to the seriousness of offending.
2. The sentence imposed for counts 7 and 8 fails to recognise the seriousness of the offending and significance of general deterrence in cases where police officers are assaulted while performing their duty. The notional starting point of imprisonment for 12 months is manifestly inadequate in that it lies outside the range of sentences reasonably available.
Criminal Law Consolidation Act 1935 (SA) ss 20, 24, 137, 270A; Sentencing Act 2017 (SA) ss 26, 97, referred to.
House v The King (1936) 55 CLR 499; R v McIntosh [2017] SASCFC 87; Malvaso v The Queen (1989) 168 CLR 227, applied.
CMB v Attorney-General (NSW) (2015) 256 CLR 346; Everett v The Queen (1994) 181 CLR 295; Muldrook v The Queen (2011) 244 CLR 120; R v Copeland (No 2) (2010) 108 SASR 398; R v Hall [2015] SASCFC 104; R v McNamara (2009) 105 SASR 38; R v Monks [2019] SASCFC 47; R v Mooney (Court of Criminal Appeal for Victoria, Young CJ, Lush and Jenkinson JJ, 21 June 1978); R v Nemer (2003) 87 SASR 168; R v Nicholas [2019] SASCFC 1; R v Osenkowski (1982) 30 SASR 212; R v Wilton (1981) 28 SASR 362, discussed.
R v WRIGHT
[2019] SASCFC 128Court of Criminal Appeal: Kelly and Parker JJ and David AJ
KELLY J: I agree that the appeal should be allowed and the respondent resentenced for the reasons given by Parker J. I agree with the orders proposed by Parker J.
PARKER J: This is an application by the Director of Public Prosecutions (the Director) for leave to appeal against a sentence imposed in the District Court.
Sentence
The respondent pleaded guilty to eight offences committed on 13 January 2017. Due to the timing of his guilty plea the respondent was entitled to the statutory discount of up to 10% on the penalties imposed.
On 26 March 2019, the following penalties were imposed by a judge of the District Court:
Count
Offence
Maximum penalty
Penalty imposed
1
Aggravated assault[1]
Imprisonment 4 years
Fined $500
2
Assault[2]
Imprisonment 2 years
Imprisonment 1 month
3
Assault
Imprisonment 2 years
Fined $250
4
Assault
Imprisonment 2 years
Fined $250
5
Attempted robbery[3]
Imprisonment 10 years
S 97 good behaviour bond:
· Amount $1,000
· Length 1 year
· To come up for sentence in the event of breach
6
Assault
Imprisonment 2 years
Fined $250
7
Aggravated assault[4]
Imprisonment 3 years
} Imprisonment 1 year
} Cumulative upon sentence for count 2; less 10% guilty plea discount:
11 months 22 days suspended on good behaviour bond:
· Amount $1,000
· Length 2 years
· Supervision for 1 year
· Not to consume alcohol
8 Aggravated causing harm with intent to cause harm[5] Imprisonment 13 years [1] Criminal Law Consolidation Act 1935 (SA) s 20(3)(c).
[2] Ibid s 20(3)(a).
[3] Ibid ss 137(1), 270A.
[4] Ibid s 20(3)(b).
[5] Ibid s 24(1)(b).
Grounds of appeal
The Director appeals on the following grounds:
1That the one year’s s 97[6] good behaviour bond for count 5 is manifestly inadequate and attended by a material error as to the factual basis of the offence; and
2That the sentence of 11 months and 22 days (suspended on a two-year bond) for counts 7 and 8 is manifestly inadequate.
[6] See s 97 of the Sentencing Act 2017 (SA).
The Director acknowledges that there was good reason to suspend the sentences of imprisonment and does not contend that the Judge erred in not ordering immediate imprisonment.
Background
The offences were committed over a period of just over one hour on the evening of 13 January 2017. The respondent had consumed a substantial amount of alcohol prior to the offending conduct. He registered a blood alcohol reading of 0.143% shortly after his arrest.
Just after 9:00 pm on the evening of the offending the respondent assaulted a waiter at a Vietnamese restaurant by standing up and pointing a fork at her after she refused to give him a knife to eat a spring roll: count 1.
The respondent subsequently assaulted another patron at the same restaurant by striking or grabbing the victim’s throat: count 2. The victim suffered redness and soreness of the neck for some days.
At approximately 9:30 pm the respondent committed two further assaults against a couple who were eating inside a McDonald’s restaurant. He approached the couple, struck his hand on their table and told them to get out. He then took up a chair in both hands and again told them to get out: counts 3 and 4.
The attempted robbery offence (count 5) was committed outside the McDonald’s restaurant. There is a dispute between the parties as to the circumstances of this offence. The Judge summarised the offending as:
You left the restaurant and approached a vehicle in the waiting bay occupied by one Mr Sumner. You grabbed him by the jacket through his open driver's side window and told him to get the fuck out of your car. He turned off the ignition, although he left the keys in place. He got out of the car. You got into the driver's seat and shut the driver's door. You sat there. He then approached you and said ‘What the fuck are you doing?’. You got out of the car muttering ‘get out of the fucking car’ and walked away.
Soon after, the respondent assaulted a security guard at a nearby hotel by throwing punches in a form of shadowboxing but without striking the security guard: count 6.
Two police officers then arrived. The respondent ran to the front of the patrol car and began hitting the bonnet and yelling. He threw punches at the first officer to alight from the vehicle, Constable Smith. The second officer, Senior Constable McCarthy, was punched in the chest and kicked in the shin: count 7.
The respondent then grabbed Constable Smith’s radio cord. Constable Smith struck him to the chin. The respondent then kicked Constable Smith’s right knee causing him to collapse to the ground: count 8. The kick to Constable Smith’s knee resulted in a complete rupture of the patella tendon.
Constable Smith underwent surgery on 15 January 2017 and again in May 2017. He has also received treatment from a physiotherapist and a psychologist. Constable Smith’s victim impact statement referred to the quite significant ongoing physical and psychological disabilities and ongoing pain caused by the assault. He may require knee replacement surgery in 10 to 15 years and has been diagnosed with PTSD. The range of police work that he can perform and his ability to engage in physical activity have both been adversely affected by the assault.
Personal circumstances
The respondent was born in November 1994 and was 22 years old at the time of the offending. He had no prior criminal convictions. Counsel for the respondent submitted that he came from a stable and supportive family.
The respondent left school in year 12 to join the army at the age of 17. His army service was terminated after he suffered a broken spine. He had also trained in martial arts and held a black belt in Taekwondo as a junior.
A psychiatric report was prepared by Dr Nick Ford in September 2017. He referred to the information provided by the respondent about his formative years. Dr Ford reported that the respondent had suffered bullying and other difficulties at school. He also had a history of fighting with other men of a similar age. Dr Ford noted the respondent’s reliance on alcohol which appeared to have developed during his Army service. His alcohol intake increased significantly over time, particularly when he developed difficulties sleeping in 2016.
Dr Ford related a previous incident, after a night out drinking, where the respondent was said to have been acting oddly. He had been found in a backyard, stated that “the Germans are coming”, marched and insisted on standing guard at his sister’s home after she had collected him from the City Watch-house. He had no memory of these events and believed his drink may have been spiked.
Dr Ford expressed the opinion that the offences appeared out of character. While there was insufficient information available to provide a clear diagnosis, Dr Ford reported that the respondent may be developing a paranoid psychosis. He considered that the respondent required ongoing psychiatric observation, regular prescription of psychotic medication and prohibition of drinking or drugs for one to two years.
Dr Ford re-assessed the respondent in January 2019. He considered he was progressing well.
Another psychiatrist, Dr Stephen Allnutt, provided a report about the respondent in May 2018. Dr Allnutt also related the respondent’s history of being bullied during his school years and detailed his excessive alcohol consumption. Dr Allnutt cited two episodes of disturbed mental state associated with alcohol abuse, the first being the incident referred to by Dr Ford and the latter being the date of the offending. He said that the respondent’s observed behaviour at the time of each incident was consistent with a misperception of environment due to psychosis. He also noted that the respondent had previously experienced a deterioration in mood with depressive symptoms and associated suicidal ideation. The key observation made by Dr Allnutt was that the respondent:
has a prior history of mood and anxiety disorder and odd ideas which affords him an underlying inherent vulnerability to the effects of alcohol with[7] and possibly an atypical reaction to alcohol on occasions characterised by psychosis.
[7] Words appear to have been omitted by Dr Allnutt at this point.
Sentencing Remarks
The Judge noted that the respondent had been at his grandfather’s funeral on the day of offending. He had consumed what the Judge referred to as a “very considerable amount of alcohol”. The Judge stated:
The offending occurred in unusual circumstances and was in some respects bizarre offending, precipitated it seems by the consumption of excessive alcohol, superimposed on underlying mental health issues.
The Judge made clear that no defence was available under Part 8A of the Criminal Law Consolidation Act 1935 (SA) because of the respondent’s voluntary intoxication. However, his Honour did take into account the respondent’s underlying mental health issues and the bizarre nature of his behaviour.
The Judge observed that the respondent was a young man and, despite some previous behavioural issues, was of good character and hardworking. His Honour referred to letters of support from members of his family, his fiancée and former girlfriend. His fiancée was expecting his child in April 2019.
The Judge also had regard to the psychiatric reports referred to above and a bail progress report which confirmed the respondent’s commitment to compliance with the supervision process and abstinence from alcohol and drugs. Urine analysis confirmed that the respondent had abstained from alcohol and drugs during the period from March 2017 until October 2018.
In sentencing for count 5 the Judge made the following remarks in addition to those set out above:
In relation to Count 5, the charge of attempted robbery, that was, as your counsel submitted, almost a transient incident. As I have said, you grabbed the jacket of the driver of a vehicle in the waiting area of McDonald's, you demanded that he get out of the car. When he turned off the ignition and got out of the car you sat in the driver's seat but did nothing. After a short period he approached you and demanded to know what you were doing and you got out of the car and walked away.
As your counsel said, it was a peculiar, exceptional basis for an attempted robbery, but you had demonstrated a willingness to admit your conduct and accept the consequences of it. Whilst such conduct would normally attract a sentence of imprisonment, having regard to the transient and unusual nature of that offence, I propose to deal with that offence separately and convict you of the charge but, without passing sentence, require you to enter into a bond in the sum of $1,000 to be of good behaviour for a period of one year and to come up for sentence if the bond is breached.
The Judge referred to a victim impact statement received from Constable Smith which detailed his ongoing physical and psychological injuries arising from the assault by kicking that was the subject of count 8.
The Judge imposed a single penalty in respect of counts 7 and 8 of imprisonment for one year pursuant to s 26 of the Sentencing Act 2017 (SA). His Honour directed that the sentence of imprisonment for one year on counts 7 and 8 be served cumulatively with the sentence of one month’s imprisonment on count 2. Thus, the total period of imprisonment was one year and one month.
The Judge declined to act on the submissions from the respondent’s counsel that he should proceed without recording convictions. His Honour considered that the offending was too serious. He also noted that there was no evidence that the respondent’s employment prospects would be affected by a conviction.
The Judge found good reason to suspend the sentence of imprisonment and noted that he “proceeded on the assumption that it is most unlikely that you will ever offend again”.
Director’s submissions
The Director contends that it is necessary for this Court to intervene in order to maintain adequate sentencing standards. Notwithstanding that the respondent’s offending was out of character and he has excellent prospects for rehabilitation, the Director submits that the sentences imposed for the offences of attempted robbery (count 5), aggravated assault (count 7) and aggravated causing harm with intent to cause harm (count 8) are manifestly inadequate. The Director considers that the offences were very serious, involving indiscriminate and unprovoked acts of violence against members of the public and two police officers.
The Director further submits that the imposition of a one year good behaviour bond in respect of count 5 was manifestly inadequate and based on a misunderstanding of the respondent’s conduct.
The Director also submits that the penalty imposed for counts 7 and 8 is manifestly inadequate having regard to the seriousness of the offending and the sentencing ranges identified in comparable matters.
The Director acknowledges that the respondent’s conduct was affected by “paranoia, thought disorder and delusional persecutory thoughts” thereby reducing his moral culpability. Whilst the need for general deterrence was significantly moderated on account of the respondent’s mental disturbance, the Director submits that personal and general deterrence are not entirely irrelevant. Those considerations still have a role to play in the sentencing of persons who offend as the result of self-induced intoxication. In that context, the Director submits that it is necessary to impose a penalty which serves the primary purpose of protecting the safety of the community.
The Director submits that the bond, particularly its short duration, fails to deter others from using violence against police officers and also does not adequately protect the community from the risk that the respondent may not adhere to a therapeutic mental health plan.
Respondent’s submissions
Counsel for the respondent submits that the Director is simply seeking that the Court tinker with the overall effect of the sentence by increasing the time to be spent under supervision. This is not a “rare and exceptional” case that warrants intervention.[8] For that reason, even if the Court considers that the sentence is too low, it should not interfere.[9]
[8] Everett v The Queen (1994) 181 CLR 295 at 299.
[9] R v Nicholas [2019] SASCFC 1 at [104].
Counsel also stresses that there is no need for this Court to intervene in a case where the respondent has already been the subject of supervision for over two years between his arrest and the date of sentencing.
Counsel contends that as a matter of sentencing discretion it was properly open to the Judge to conclude that the respondent was unlikely to re-offend and that his rehabilitation should be supported.[10]
[10] See e.g. R v Osenkowski (1982) 30 SASR 212 at 212-213 cited in R v Nicholas [2019] SASCFC 1 at [8].
Notwithstanding the inherent seriousness of the offences, counsel submits that both the offending and the respondent’s personal circumstances are atypical. The finding by the Judge that the offending was “unusual” and “bizarre” was open to his Honour. In the circumstances, both specific and general deterrence had a lesser role to play. The sentences imposed were well within the range reasonably available to the Judge.
The respondent complains that the submission by the Director that the need for personal and general deterrence was not lessened because the respondent’s mental state was the result of self-induced intoxication was not put to the Judge. To allow the Director to raise that issue on appeal would be contrary to the principles governing prosecution appeals.
In similar vein, the respondent also complains that the Director now seeks to rely upon sentencing authorities that were not referred to in submissions before the Judge.
The respondent further submits that his offending is distinguishable from the “violent offence fuelled by intoxication” that was considered by this Court in R v Monks.[11] Because he was unaware of his mental condition, he could not reasonably have foreseen the risk that his alcohol consumption would trigger a psychosis that led to his offending behaviour.
Consideration
[11] [2019] SASCFC 47, Doyle J at [44].
Principles which apply on prosecution appeals
The principles which apply in relation to prosecution appeals are well established and require little elaboration.
Permission to appeal will only be granted in rare and exceptional cases if it is necessary to enable the court to establish and maintain adequate standards of punishment, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime so as to shock the public conscience.[12]
[12] R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168, Doyle CJ at 172.
On a prosecution appeal against sentence the Director must establish error in the House v The King sense[13] and, in addition, must also persuade the court of the existence of strong reasons of public policy which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed.[14]
[13] (1936) 55 CLR 499 at 505, for example, if a judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts or if he does not take into account some material consideration.
[14] R v McIntosh [2017] SASCFC 87 at [16] per Hinton J (Peek and Nicholson JJ agreeing).
The Director’s position before the Judge
I will first consider the complaint by the respondent that the Director has advanced submissions in respect of two matters that were not put to the sentencing Judge. Before doing so, I note that it is only in exceptional circumstances, which justify that course, that new submissions may be advanced on appeal that materially change the issues to be decided.[15]
[15] Malvaso v The Queen (1989) 168 CLR 227, Deane and McHugh JJ at 240 referring to R v Wilton (1981) 28 SASR 362 King CJ at 367-368 (Mitchell and Williams JJ agreeing); CMB v A-G (NSW) (2015) 256 CLR 346 at [63].
Counsel for the respondent contends that sentencing proceeded on the basis of an agreed position, without qualification, that the respondent was suffering from “thought disorder and delusional persecutory idea”. There was no submission by the Director that the respondent should be sentenced on the basis that his “thought disorder” was occasioned by self-induced intoxication that might be relevant to his moral culpability.
The transcript of the sentencing submissions establishes that the Crown accepted that the respondent’s “… decision-making process was impacted by paranoia, thought disorder and delusional persecutory ideas” and also that his “… personal circumstances do present as somewhat unusual and his behaviour is in many ways inexplicable”. Those concessions were made in the context of addressing the respondent’s submission that a conviction should not be recorded.
While the prosecutor did not specifically submit that the respondent’s thought disorder was occasioned by self-induced intoxication, both Dr Ford and Dr Allnut had opined in their reports that the psychotic episode was triggered by excessive consumption of alcohol. Moreover, the Judge was informed of the respondent’s blood alcohol reading. In that light, his Honour observed at two points in his sentencing remarks that no defence was available to the respondent under Part 8A of the Criminal Law Consolidation Act because his behaviour had been precipitated by the voluntary consumption of a large amount of alcohol. While the prosecutor did not specifically submit that self-induced intoxication was relevant to the respondent’s moral culpability, that issue was clearly before the Court. In these circumstances, I do not consider that the Director’s submission on appeal gives rise to any procedural unfairness nor is it contrary to the double jeopardy principle. Accordingly, I consider that the Director is not precluded from submitting on appeal that the respondent’s self‑induced intoxication was relevant to his moral culpability.
I do not consider that the fact that the prosecutor did not refer to sentences in comparable cases during the sentencing submissions precludes the Director from doing so on appeal. Reference to cases that are said to be comparable is commonplace in sentencing appeals but is not an essential practice when making sentencing submissions.
Mental Impairment and Intoxication
The medical reports establish that the respondent’s underlying mental health issues were temporarily exacerbated and made acute by his voluntary consumption of a substantial amount of alcohol. The reports also make clear that on an earlier occasion the respondent had exhibited a form of mental disturbance after becoming intoxicated. While he was not charged with any offence on that occasion, he had been detained by the police. It seems that the police had become involved because the respondent was behaving oddly in a backyard.
In Muldrock v The Queen[16] the High Court referred with approval to the following observations made by Young CJ in R v Mooney:[17]
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
[16] (2011) 244 CLR 120, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ at [53].
[17] (Court of Criminal Appeal for Victoria, Young CJ, Lush and Jenkinson JJ, 21 June 1978).
The approach to sentencing where mental impairment has been triggered by self-induced intoxication was recently considered by this Court in R v Monks.[18]The appellant in Monks had a long history of poly-substance abuse. He had previously been convicted in Victoria of manslaughter involving excessive self‑defence. In the manslaughter case Curtain J had found that, because of his history, the appellant would have known that the risk of violent conflict was accentuated by his heavy consumption of alcohol. Soon after being released from prison on parole following the manslaughter sentence, the appellant had used crystal methylamphetamine (ice) on several occasions. His usage of ice had led to the appellant “losing his mind”[19] and hospitalisation. The subsequent offence of arson that was the subject of the sentencing appeal to this Court in Monks occurred while the appellant was suffering hallucinations caused by the use of ice.
[18] [2019] SASCFC 47.
[19] The appellant‘s words.
Whilst the judgment in Monks was published after the respondent was sentenced, the common law principles expressed by the Court are nevertheless relevant. Doyle J (Peek and Parker JJ agreeing) observed that:
[35]In determining the relevance of the impairment of an offender’s mental functioning in a particular case it will be necessary to consider matters including (i) the nature and severity of the impairment; (ii) the extent to which the impairment was operating on the offender’s mental functioning at the time of the offending and hence can be said to have influenced or caused the offender to commit the offence and/or to have affected the offender’s capacity to appreciate the wrongfulness and gravity of the offending; (iii) whether the impairment was the product of an underlying mental illness or disability, self-induced intoxication, or some combination of such factors; (iv) if the product of self-induced intoxication, whether it reflected an addiction, and if so the circumstances of that addiction; and (v) the ability of the offender to reduce or overcome the significance of any underlying condition or addiction, and the steps taken or able to be taken by the offender in that regard.
After observing that mental impairment may reduce the need for denunciation and punishment in the sentence, Doyle J further stated:
[39]On the other hand, if the impairment was the product of self-induced intoxication, then it will not generally lessen the offender’s moral culpability for their offending, and indeed may be an aggravating factor. It seems that the reason for this lies in the notion that the offender’s culpability or blameworthiness exists in their decision to consume the intoxicating alcohol or drug, or at least that by reason of the impairment being self-induced the offender is morally responsible for his or her condition. This is particularly so where the offender had, or ought to have had, some appreciation or foresight (whether through experience or the application of common sense) of the risk of engaging in inappropriate or criminal conduct while intoxicated.
[40]In exceptional cases of self-induced intoxication, there may some scope for a reduction in the offender’s moral culpability. That may be so in cases where the offender had no reason to foresee a risk of engaging in inappropriate or criminal conduct while intoxicated, or where there is some other circumstance that wholly or partly excuses the consumption of alcohol or drugs.
….
[70]The sentencing judge did not make any express allowance for the appellant’s impaired mental condition in respect of general or personal deterrence. Again, in my view, there was no error in his Honour’s approach. Self-induced intoxication, including drug-induced psychosis, is not a matter that would ordinarily render an offender an inappropriate medium for giving effect to the concern to ensure a level of general deterrence. That is particularly so in a case of offending of the potential seriousness of the present case.
…
[72]However, the law has been cautious in recognising any role for more general mental health issues in the offender’s background, including personality disorders, in mitigating the need for general deterrence. In this case, I am not persuaded that the appellant’s underlying or background mental health issues were of a nature or severity to call for any moderation of the need for general deterrence.
(Footnotes omitted)
I consider that the principles referred to by Doyle J in Monks are relevant to this appeal, albeit that the history of the appellant in that case was significantly different, and his offending more serious, than that of the present appellant.
The reports of Dr Ford and Dr Allnutt make clear that the night of the offences was not the first occasion upon which the respondent had experienced an alcohol-induced psychotic state. While his conduct on the earlier occasion seems to have been bizarre rather than criminal, it should have sounded a warning to the respondent about the dangers to which he exposed himself (and others) by becoming intoxicated.
For that reason, and in accordance with the principles expressed in Monks, I consider that the significance of general and specific deterrence was not reduced because the respondent’s mental state at the time of his offending was aggravated by self-induced intoxication. This Court has also recognised the need to deter offences of violence committed under the influence of alcohol.[20] The fact that counts 7 and 8 involved unprovoked assaults on police officers acting in the course of their duty also heightens the importance of general deterrence.[21]
[20] R v Hall [2015] SASCFC 104, Kourakis CJ at [33] and Stanley J at [63].
[21] R v McNamara (2009) 105 SASR 38.
Ground One – Count 5
The maximum sentence for the offence of attempted robbery is imprisonment for ten years. There is no recognised tariff for a basic offence of robbery because of the wide variety of circumstances in which the offence can occur.
The Director contends that the one year good behaviour bond is manifestly inadequate, having regard to the fact that other acts of violence committed by the respondent warranted a term of imprisonment. While count 5 was not the most serious offending engaged in by the respondent, the Director contends that the elements of physical force and verbal aggression and the physical vulnerability of the victim added to its seriousness. The Director also contends that a bond of one year is not sufficient to ensure that the respondent properly addresses his alcohol problem and adheres to a mental health regime to minimise the risk of reoffending and to protect the community.
The Director further submits that the sentence for count 5 was imposed upon an incorrect factual basis. The complaint is that the Judge treated the incident as being transient and failed to recognise the full gravity of the respondent’s conduct.
The Director points out that the victim’s witness statement reveals that the respondent yelled at the victim in an aggressive tone to “get the fuck out of [his] car”, reached through the open driver’s window and grabbed the victim’s jacket. The victim was held by his jacket and thrown to the side before the respondent entered the vehicle. The victim also stated that “even though the key was in the ignition he couldn’t get the car started for whatever reason and ended up getting out again”. The respondent applied a two-handed shove to the victim upon alighting from the vehicle.
The matter proceeded by way of guilty plea. The prosecutor submitted that the respondent should be sentenced on the basis of the sworn declarations as opposed to the defence’s summary of the facts, which had not been agreed. The Director is concerned that the Judge adopted the respondent’s version of events which was not agreed.
Counsel for the respondent submits that it is implicit in the sentencing remarks that the Judge had considered the declarations. The failure of his Honour to mention the declarations does not indicate that he had overlooked them.[22] Counsel also submits that even if this Court finds that the Judge did proceed on an erroneous factual basis, the error is not material and should not have any significant effect on the sentence imposed.
[22] R v Copeland (No 2) (2010) 108 SASR 398, Gray J at [27]–[28].
It is clear from the transcript that the sentencing was to occur in accordance with the facts set out in the declarations rather than the document prepared by the defence. Whilst the sentencing remarks did not mention all of the matters referred to in the declarations, there is nothing to suggest that the judge failed to consider the declarations.
I also do not consider that the Judge’s characterisation of the offence as “transient” and “unusual” was inaccurate. The incident in the McDonald’s drive‑through was transient in the sense that it occurred within a very short space of time and the respondent departed the scene after very quickly abandoning his apparent attempt to take control of the victim’s car. While the incident was no doubt frightening for the victim, the respondent’s behaviour was very much at the lower end of the range of conduct that may be encompassed by a charge of attempted robbery.
I do not consider that there is any inconsistency or incongruity in fixing the duration of the bond at 12 months in relation to count 5 and two years in relation to counts 7 and 8. I hold that view because the conduct involved in count 5 was significantly less serious than that covered by counts 7 and 8. It is also relevant that the two bonds have different consequences. If he breaches the bond of 12 months imposed under s 97 in relation to count 5, he will be sentenced for the offence of attempted robbery. However, a breach of the two-year bond imposed on counts 2, 7 and 8 may result in the respondent serving the sentence of imprisonment for 11 months and 22 days imposed in relation to those counts.
Ground Two – Counts 7 and 8
The offences of aggravated assault (count 7) and aggravated causing harm with intent to cause harm (count 8) were committed against two police officers. The maximum penalties for these offences are imprisonment for three years and 13 years respectively.
The respondent was clearly the aggressor in making unprovoked attacks by punching and kicking the two police officers as soon as they arrived on the scene. Most significantly, the respondent inflicted a major knee injury upon Constable Smith that has had a significant effect on his physical and mental well‑being, his career and personal life.
The fact that counts 7 and 8 concern assaults on police officers also heightens the importance of general deterrence. As Gray J stated in R v McNamara: [23]
Courts have repeatedly emphasised that police officers perform an important role in the public interest, and the need for the courts to protect those officers as they pursue their duties. For this reason general deterrence is a particularly important consideration when sentencing for an attack on a police officer.
(Footnotes omitted)
[23] (2009) 105 SASR 38 at [7].
Vanstone J (Kourakis J, as he then was, agreeing) made observations to like effect.[24] Of course, these observations are only relevant to counts 7 and 8 which concerned assaults upon police officers.
[24] Ibid at [31].
For the reasons indicated in the preceding three paragraphs, I agree with the Director’s submission that the notional starting point of imprisonment for 12 months (reduced by 10% in recognition of the respondent’s guilty pleas) in respect of counts 7 and 8 is manifestly inadequate in that it lies outside the range of sentences reasonably available.
I also consider that if the sentence was permitted to stand it would shake public confidence in the administration of justice because it fails to recognise adequately the seriousness of the assault upon Constable Smith and the significance of general deterrence in cases where a police officer is assaulted while performing their duty. I therefore consider it necessary for this Court to intervene so as to maintain adequate standards of punishment for offences of the type covered by count 8.
While the reports suggest that the respondent has made good progress in dealing with his alcohol problem and has been responsive to supervision, because of the potentially serious consequences of any behavioural relapse and consistently with the need to attach greater significance to general deterrence, I consider that the duration of the bond and the period of supervision should be extended.
Conclusion
I would grant permission for the Director to appeal and I would allow the appeal. I would quash the sentence of imprisonment for 12 months on counts 7 and 8 and instead impose a sentence of imprisonment for two years.
The sentence of imprisonment for one month imposed on count 2 has not been challenged. Because the sentence on counts 7 and 8 is cumulative on that for count 2, and as the respondent is entitled to a discount of 10%, I would impose a total period of imprisonment for counts 2, 7 and 8 of one year 10 months and 15 days. As the sentence would exceed 12 months, it will be necessary to set a non-parole period. I would fix the non-parole period at 12 months.
The duration of the good behaviour bond should be increased from two years to three years with supervision for the first 18 months.
DAVID AJ: I would allow the appeal. I agree with the reasons of Parker J and the orders he proposes
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