R v WRIGHT

Case [2019] SASCFC 128

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

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AGLC
R v WRIGHT [2019] SASCFC 128
Case
[2019] SASCFC 128
Decision Date

CaseChat Overview and Summary

This case involved an appeal by the Director of Public Prosecutions against the sentence imposed on the respondent, R Wright, by a sentencing judge. The respondent had pleaded guilty to multiple charges, including assault occasioning actual bodily harm, common assault, attempted robbery, and assaulting police officers. The Director contended that the sentence was manifestly inadequate, particularly in light of the severity of the injuries sustained by one of the police officers.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge erred in the exercise of their discretion, leading to a sentence that was too lenient. Specifically, the court had to determine if the principles governing prosecution appeals against sentence were met, requiring the Director to demonstrate error in the `House v The King` sense and strong public policy reasons for granting permission to appeal. The court also considered whether the respondent's mental state, influenced by alcohol and a diagnosed "thought disorder," was appropriately factored into the sentencing determination.

The court applied the well-established principles for prosecution appeals, noting that permission to appeal is granted only in rare and exceptional cases to maintain adequate standards of punishment and correct idiosyncratic sentencing. The Director successfully argued that the sentencing judge had made errors, including failing to give sufficient weight to the gravity of the assaults on police officers and the significant, ongoing injuries suffered by Constable Smith. While acknowledging the respondent's personal circumstances and the impact of his mental condition, the court found that the original sentence did not adequately reflect the need for general deterrence and the protection of the community, particularly police officers.

Consequently, the court allowed the appeal. The sentence of imprisonment for 12 months on counts 7 and 8 was quashed and replaced with a sentence of two years. This sentence was made cumulative on the one-month sentence for count 2, resulting in a total period of imprisonment of one year, 10 months, and 15 days, with a non-parole period of 12 months. The duration of the good behaviour bond was also extended from two to three years, with supervision for the first 18 months.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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.