R v Wright

[2012] SASCFC 45

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WRIGHT

[2012] SASCFC 45

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Kourakis)

2 May 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - OTHER PARTICULAR CASES

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TIME SPENT IN CUSTODY

Appellant was sentenced for multiple offences in the District Court of South Australia – for the first offence of aggravated threatening to cause harm to a police officer with a bow and arrow, the appellant was sentenced to imprisonment for two years six months reduced from three years on account of a plea of guilty – for the second offence of unlawful possession of a laptop, the appellant was sentenced to imprisonment for six months to be served cumulatively upon the sentence for the first offence – for the third offence, the appellant was originally charged with more serious offences related to dealings in cannabis, but ultimately plead guilty to two counts of the lesser offence of possessing a controlled drug and was fined $350 on each count – prior to these three offences, the appellant was sentenced to imprisonment for two years, that sentence being suspended upon him entering into a bond to be of good behaviour for a period for two years – the three above offences gave rise to a breach of that bond – in total the appellant was sentenced to imprisonment for a period of five years – the sentencing Judge fixed a non-parole period of 40 months – the appellant made application for permission to appeal to the Court of Criminal appeal against the sentences – a judge of the Supreme Court of South Australia refused the application on the basis that it was not reasonably arguable that the sentences imposed were manifestly excessive – the appellant then made application to the Court of Criminal Appeal for his application to be considered and determined – the appellant also applied for an extension of time within which to amend the grounds of appeal, for permission to amend the grounds of appeal, and for permission to appeal on those grounds.

The issues on appeal were: (1) whether it was reasonably arguable that the sentences imposed was manifestly excessive; (2) whether considerations of totality called for a reduction in the overall sentence; (3) whether the sentencing Judge, having revoked the suspension of the sentence of two years’ imprisonment upon satisfaction of its breach, failed to consider if there were special circumstances to permit him to reduce the term of the suspended sentence; and (4) whether the sentencing Judge failed to take into account the appellant’s time spent in custody.

Held: (1) it was not reasonably arguable that the sentences imposed were manifestly excessive; (2) the sentence was not out of proportion to the overall criminality of the appellant’s conduct; (3) no special circumstances existed to justify a reduction in the sentence; (4) the sentencing Judge failed to take into account the appellant’s time spent in custody – there were good reasons to reduce the length of the sentence imposed for the first and second offences on account of the time spent in custody for the third offence – the appellant was remanded in custody for the more serious drug charges that were eventually dropped – the lesser offences that he pleaded guilty to were not punishable by imprisonment – where a remandee is ultimately not convicted of an offence punishable by imprisonment an adverse consequence of that kind is necessarily left unremedied, but it does not follow that the time spent in custody should be ignored in the case of prisoners who are liable to be sentenced for other offences – the head sentence was reduced to reflect the time spent in custody and a proportionate reduction was made to the non-parole period – appeal allowed in part.

R v WRIGHT
[2012] SASCFC 45

Court of Criminal Appeal:   Doyle CJ, Vanstone and Kourakis JJ

1. DOYLE CJ:          Mr Wright was sentenced in the District Court for a number of offences.

2. He applied for permission to appeal against the sentences.  A single Judge of this Court refused permission to appeal, considering that the appeal had no prospects of success.

3. Mr Wright has now applied to have his application for permission to appeal considered and determined by this Court.  He was to appear unrepresented, but when the matter was called on Mr Bastick appeared for him.

4. The offences are as follows.

5. The first offence was threatening to cause harm to a police officer, intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused.  The offence involved Mr Wright threatening a police officer with a bow and arrow.  The offence is an aggravated offence.  The maximum penalty for this offence is imprisonment for seven years.

6. The second offence was a charge of unlawful possession of a laptop.  This offence was committed on 10 March 2010.  The maximum punishment for this offence is a fine of $10,000 or imprisonment for two years. 

7. The third offence, as I will call it, in fact involved two counts of possessing a controlled drug.  These offences were committed on 5 February 2010 and 26 June 2010.  The maximum penalty for each of these offences was a fine of $500. 

8. The circumstances of the offences were in brief as follows.

9. As to the first offence, which occurred on 26 July 2009, police came to Mr Wright’s home looking for another person.  There is no need to go into all the details.  It suffices to say that while the police were there, and Mr Wright knowing that they were police officers, as the Judge found, Mr Wright threatened one of them with a bow and arrow.  He fitted the arrow to the bow and drew back the bowstring and pointed it at the police officer.  He was close to the police officer when he did so.  He did so for several seconds before he lowered the bow.  This is a serious offence.  For this offence the Judge sentenced Mr Wright to imprisonment for two years six months.  But for his plea of guilty, the sentence would have been for three years.

10. The second offence was less serious.  There is no need to say anything about the circumstances.  For this offence, the Judge sentenced Mr Wright to imprisonment for six months, to be cumulative upon the first sentence.

11. What I called the third offence involves two offences.  On 5 February 2010 police went to Mr Wright’s home, and there found cannabis and other items that could have been associated with dealings in cannabis, but the charge to which he ultimately pleaded guilty was one of possession of a controlled drug.  On 26 June 2010 police again went to his house, and again found cannabis and other related items.  The maximum penalty for each of these offences was a fine of $500.  The Judge fined Mr Wright $350 on each count. 

12. Finally, on 20 November 2008 Mr Wright had been sentenced to imprisonment for two years, that sentence of imprisonment being suspended upon him entering into a bond to be of good behaviour for a period of two years.  The offences already referred to gave rise to a breach of the bond.  The fact that these sentences were committed while he was on a bond to be of good behaviour is an aggravating circumstance in relation to those offences.  The Judge found the breach proved and revoked the suspension of the sentence, and ordered that it be carried into effect. 

13. That meant that in total Mr Wright was ordered to serve imprisonment for two years, then a further two years six months, and then a further six months, making five years in all.  The Judge fixed a non-parole period of 40 months.  The Judge directed that the first of those sentences commence from 18 August 2011, when Mr Wright was remanded in custody.

14. The first thing to be said is that Mr Wright has a very bad record.  He has four pages of previous offences.  He has been imprisoned before.  He has had the benefit of a suspended sentence before.  A number of his offences involve the possession or supply of unlawful drugs.  A number involve dishonesty.  A number involve breaches of road traffic law.  His bad record meant that he could not be given any credit for good behaviour in the past.  His bad record also indicates a need for a considerable element of personal deterrence, and makes him a poor prospect for a bond. 

15. Mr Wright was 55 years of age when sentenced.  He had regular employment until about 2000, when due to ill health he stopped work and was placed on a disability pension.

16. As the Judge noted, his state of health was poor.  He suffered from a heart attack in 2010.  He was positive Hepatitis C, suffering from hypertension, angina and from alcohol related liver diseases.  He had a history of misusing drugs and alcohol, and no doubt this contributed to his offending, both in the past and to these offences.

17. The Judge considered a report from Mr Fugler, a psychologist.  Mr Fugler reported that Mr Wright had stopped using alcohol and appeared to be making efforts to maintain a reasonable level of physical health.  Mr Fugler noted that if he could maintain that approach, the risk of him offending in the future would be reduced.

18. That may be so.  However, Mr Wright’s bad record means that he cannot expect leniency now.  Nor can the sentence be fixed on the basis that he has overcome his tendency to abuse drugs and alcohol.  The best one can do is to accept that he is trying to overcome that tendency, and might do so.

19. In my opinion the sentences that the Judge imposed were in about the middle of the range, and by no means towards the upper end.  I have said it before, but I repeat that threatening a police officer while the police officer is carrying out his duty is a serious offence, and one that will attract severe punishment.  While the drug offences and the unlawful possession offence can be regarded as relatively minor, Mr Wright’s long record of offending leads to the conclusion that these latest offences reflect a continuing attitude on his part of not caring about the law and its impact on his behaviour.

20. Standing back, the only thing that can be said in Mr Wright’s favour is that he may now be attempting to stop abusing drugs and alcohol, and if he does so his behaviour may improve.  However, that does not help much at present.

21. In my opinion it is not reasonably arguable that the sentences imposed are excessive.  I would refuse permission to appeal on that ground, the ground on which he applied for permission to appeal.

22. Mr Bastick raised three further matters.  He applied for an extension of time within which to amend the grounds of appeal, for permission to amend the grounds of appeal, and for permission to appeal on those grounds.  The Court heard his submissions without ruling on the application. 

23. The first is that considerations of totality call for a reduction in the overall sentence, even though it was accepted that individually the sentences were appropriate.  I disagree.  The sentence was a substantial one, but reflects the seriousness of the main offence, threatening the police officer, and the fact that he committed other offences, and was in breach of his bond.  I do not consider the sentence out of proportion to the overall criminality of his conduct.

24. The next complaint was that the Judge failed to consider whether, having revoked the suspension of the sentence of two years’ imprisonment, there were special circumstances justifying the Judge in reducing the term of the suspended sentence.  The first answer to this complaint is that the Judge was not asked to do that.  The second answer is that there are no special circumstances which would justify a reduction in the sentence.  The suspended sentence was imposed in respect of an offence of producing cannabis, the maximum punishment for which was imprisonment for ten years and a fine of $50,000.  Bearing in mind the offences in relation to which he now appeals, and his continued involvement with drugs, there is nothing in the circumstances to justify the reconsideration of the period of the suspended sentence.  The subsequent deterioration in his health is not such as to render the period of imprisonment he would serve so onerous as to justify its reduction.

25. The final matter raised by Mr Bastick was that Mr Wright had spent time in custody, about five months in all, when charged with more serious drug offences than the offences to which he ultimately pleaded guilty.  Those more serious charges were replaced by the less serious charges to which he pleaded guilty.  The relevant period was from 28 June 2010 until 29 November 2010.  Although Mr Wright was represented by counsel, this was not explored before the sentencing Judge.  Counsel referred in passing to a period in excess of one month.

26. The sentencing Judge did not expressly make any allowance for the time spent in custody.  In the circumstances of this case, I am satisfied that the absence of any reference to the period spent in custody indicates that the Judge did not take it into account in fixing the sentence he imposed.

27. There were good reasons to reduce the length of the sentence imposed for the first and second offences on account of the time spent in custody for the third offence.  First, the appellant was remanded in custody after the commission of the first two offences, and by reminding him of the consequences of offending that remand would have effected some measure of personal deterrence.

28. Secondly, it is in my view harsh to ignore the time in which the appellant spent in custody for offending which, as it turned out, was not punishable by imprisonment.  Counsel for the Director did not contend that the more serious charges were withdrawn because of the time spent in custody.  In the absence of any submission or evidence to the contrary this Court can proceed on the basis that the appellant’s remand in custody has not been taken into account in his favour in any other matter.  The appellant has therefore suffered a substantial punishment as a consequence of the charges which were ultimately withdrawn.  I acknowledge that where a remandee is ultimately not convicted of an offence punishable by imprisonment an adverse consequence of that kind is necessarily left unremedied, but it does not follow that the time spent in custody should be ignored in the case of prisoners who are liable to be sentenced for other offences.  The case for having regard to the appellant’s time in custody is reinforced by the concession, appropriately made, by counsel for the Director that it is likely that the appellant was denied bail on the third offences because they were committed whilst he was on bail for the first and second offences. 

29. It follows that the Judge failed to take into account the relevant consideration of the time spent in custody by the appellant.  I would allow the appeal for the purposes of reducing the head sentence by that period and making a proportionate reduction to the non-parole period.

30. I would make the following orders:

    1That the appeal be allowed in part.

    2That the sentence of imprisonment for the first offence be reduced by three months to imprisonment for two years one month.

    3That the sentence of imprisonment for the second offence be reduced by two months to imprisonment for four months.

    4That the non-parole period be set aside and a new non-parole period be fixed at 35 months.

    5That the appeal otherwise be dismissed.

31. VANSTONE J:     I would allow the appeal for the limited purpose referred to in the reasons of the Chief Justice.  I agree that the sentence should be adjusted to give credit for time spent in custody prior to sentence.

32. KOURAKIS J:     I agree with the reasons of the Chief Justice.