R v Yost

[2010] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v YOST

[2010] SASCFC 4

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Kelly)

16 July 2010

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 OFFENCE - GRAVITY OF OFFENCE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - PLEA OF GUILTY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER

Appellant pleaded guilty to one count of murder, one count of gross indecency and nine counts of unlawful sexual intercourse - judge imposed sentence of life imprisonment with 30 year non-parole period - appeal against sentence - whether non-parole period manifestly excessive - whether separate head sentence should have been given for sexual offences - weight to be given to protection of the public - objective seriousness of offences - whether sentence wrongly included uncharged acts - whether judge gave sufficient weight to circumstances personal to appellant - whether discount for guilty pleas sufficient.

Held: appeal dismissed - no error demonstrated - judge entitled to utilise s 18A Criminal Law (Sentencing) Act 1988 (SA) to impose one head sentence - non-parole period not manifestly excessive.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, 10(2), 10(4), referred to.
R v Verdins (2007) 169 A Crim R 581; R v Symonds [1999] SASC 217, discussed.
R v Wiskich (2000) 207 LSJS 431, considered.

R v YOST
[2010] SASCFC 4

Court of Criminal Appeal:       Doyle CJ, Duggan and Kelly JJ

1. DOYLE CJ:          I would dismiss the appeal.  I agree with the reasons given by Kelly J.  There is nothing that I wish to add.

2. DUGGAN J:         In my view the appeal should be dismissed for the reasons given by Kelly J.

   KELLY J:

   Introduction

3. The appellant appeals a sentence imposed by a judge of this Court on 9 December 2009 for an offence of murder and a number of separate offences of a sexual nature in relation to a 15 year old girl.

4. The mandatory head sentence for the crime of murder is life imprisonment.  For the offence of indecent assault and the offence of unlawful sexual intercourse the maximum penalties at the relevant time were eight years and ten years respectively. 

5. The learned sentencing Judge, utilising the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 (SA), imposed a non‑parole period of 30 years. He allowed three years off the non‑parole period by way of discount for the appellant’s plea of guilty.

   Background

6. The victim of the murder was the appellant’s partner.  The appellant’s plea of guilty was entered on the basis of recklessness.  He admitted causing grievous bodily harm to his partner knowing that it would probably cause death or grievous bodily harm.

7. The assault which led to the victim’s death was not isolated.  The undisputed facts were that she had been subjected to severe beatings by the appellant in the past.  Not only that, the appellant had video recorded a previous episode of violence towards the victim.  The cause of the victim’s death was bilateral fractures resulting in a flail chest.  In addition to some of the old injuries there were 12 new rib fractures which could have been caused by punching, kicking, or multiple blows from a blunt object, or by kneeing, stomping or throwing against the wall.  The victim had previously been admitted to hospital on many occasions with very serious injuries.  She had previously attempted to leave the appellant but in the weeks preceding her death the appellant travelled to Mount Gambier, where she had fled, and took her back with him to Adelaide.  The body of the victim was found in the appellant’s house at Para Hills in an advanced stage of decomposition on 29 January 2007.  She was last seen alive on 22 January 2007.  There was evidence in the appellant’s house of attempts to clean up the crime scene. 

8. The complainant in respect of the sexual offences was a 15 year old school girl.  The course of conduct in relation to her persisted for a period of well over a year.  She had been attending a Christian college and was struggling with an addiction to drugs.  The appellant provided drugs to her and later became her sexual partner.  Police found videos of sexual activity between the appellant and the complainant in the appellant’s home during the search of his house after the discovery of the body of the appellant’s partner. 

   Issues on Appeal

9. The learned sentencing Judge did not fix a separate head sentence for the 10 sexual offences in relation to the young girl.  It appears from the transcript of submissions before the Judge that he adopted that course with the concurrence of both counsel then appearing.  After allowing what he described as a modest reduction of three years for the plea of guilty in relation to both sets of offending the Judge imposed a non‑parole period of 30 years in relation to “all matters”. 

10. The appellant complains that the sentencing Judge made a number of errors which led to the imposition of a non‑parole period which is manifestly excessive.  One of the principal complaints made by the appellant is that the Judge gave too much weight to the consideration of the protection of the public and far too little weight to the contents of a psychiatric report which described the appellant as having an underlying antisocial personality disorder.

11. The appellant also complains that the discount for the pleas of guilty were inadequate.  It was submitted that the discount of approximately 9 per cent failed to accord sufficient weight to the important public policy considerations which underpin the practice of applying discounts to offenders who plead guilty at the earliest opportunity.

12. A further complaint that s 18A of the Criminal Law (Sentencing) Act 1988 (SA) could not be utilised to impose only one head sentence in the circumstances where one of the offences attracted a mandatory head sentence of life imprisonment was abandoned in the course of argument; however counsel for the appellant maintained the complaint that the Judge’s failure to articulate a nominal starting point for the sexual offences in question led to a lack of transparency. It was said that this lack of transparency, in combination with the other matters complained of, led the Judge to impose a non‑parole period which is in all the circumstances manifestly excessive.

    Discussion

13. In considering these complaints it is important to understand the context in which the offences were committed and the factual basis on which the Judge sentenced the appellant for both episodes of offending.

14. As the Chief Justice observed during the course of argument on the hearing of this appeal, the sexual offending in relation to the complainant was undoubtedly extremely serious.  The statements of the complainant disclose a disturbing picture of the corrosive and corrupting effect of the appellant’s actions upon her at a vulnerable stage in her life.  She was then about 15 years old and struggling with an addiction to drugs, an addiction which the appellant was only too willing to foster.  Initially he provided the complainant with drugs for free, before later demanding sexual acts in return for the drugs.  In addition some of the appellant’s sexual acts with the complainant were recorded by him on video and still photographs apparently for later viewing.  These were found in the appellant’s house at the time of his arrest for murder. 

15. The objective seriousness of the appellant’s sexual offending in relation to the complainant, in my view, justified a starting point for the head sentence for the sexual offences alone, in the vicinity of nine to ten years. 

16. The circumstances relating to the offence of murder were also extremely serious.  It is always possible to identify worse cases or less serious cases, however, the point needs to be made that here, where a young woman was beaten to death in the context of a domestic partnership punctuated by violence, the circumstances were such as to justify placing the appellant’s offending in a very serious category indeed. 

17. The statutory regime which applies for offences of murder under the Criminal Law (Sentencing) Act 1988 (SA) provides for a minimum mandatory non‑parole period of 20 years. That figure represents the non‑parole period for an offence of murder at the lower end of the range of objective seriousness.

18. The appellant pleaded guilty to the murder on the basis of recklessness.  However the circumstances here were such that, as counsel for the appellant quite properly conceded, the difference between an actual intention to cause grievous bodily harm and recklessness as to that intention was very slight.  The murder was committed against the background of persistent and serious assaults perpetrated by the appellant against the victim.  That violence was part of the context and surrounding circumstances of the murder.  For sentencing purposes therefore, although this was a case of reckless murder, the offending was just as serious as a case where there was a deliberate intention to cause grievous bodily harm.  This murder was not at the lower end of the range of objective seriousness. 

19. Because of the appellant’s plea of guilty, in theory at least, the mandatory minimum non‑parole period of 20 years did not apply, but as the Judge found, the seriousness of the circumstances surrounding the murder did not support the exercise of the discretion to go below the minimum mandatory period of 20 years. 

20. It was contended that the learned sentencing Judge gave undue weight to the need for the public to be protected at the expense of other important considerations, which included the appellant’s diagnosis of an underlying antisocial personality disorder, and other factors personal to the appellant such as his age and the lack of any relatively serious criminal history for violent offending.  Counsel for the appellant pointed to the absence of any references at all in the sentencing remarks to the appellant’s diagnosed mental condition to support the submission that the sentencing Judge simply failed to take proper account of these matters.  It was submitted that these matters ameliorated the appellant’s offending by reducing his moral culpability. 

21. In making this submission counsel relied on a number of authorities including the Victorian case of R v Verdins (2007) 169 A Crim R 581. In Verdins the Victorian Court of Appeal restated and clarified some of the principles relevant to the sentencing of offenders suffering from a serious psychiatric illness.  Much of what fell from the Victorian Court of Appeal in Verdins is consistent with established authority in this state.  See R v Wiskich (2000) 207 LSJS 431. However the remarks of the Court in Verdins are apposite in the present context.  As their Honours pointed out, a sentencing court should not have to concern itself with how a particular condition is to be classified.  What matters is what the evidence shows about the nature, extent and effect of the suggested mental impairment experienced by the offender at the relevant time. 

22. The Court stated at [13]:

    Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the enquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances - that is, at the time of the offending or in the lead-up to it - or is likely to affect him/her in the future.

23. Here the sentencing Judge was presented with a report from a psychiatrist Dr Raeside dated 29 September 2009.  In his report Dr Raeside referred to the appellant’s extensive drug and alcohol abuse, and to the extensive history of domestic violence the appellant had inflicted upon the victim, in conjunction with the ingestion of large amounts of cocaine and amphetamines which he said were likely to have heightened the appellant’s sexual drive, aggression and paranoia.  Dr Raeside found no evidence of a previous or current psychiatric disorder.  He did however diagnose an underlying antisocial personality disorder.  The description by the psychiatrist of this disorder in itself tends to suggest that the diagnosis might apply to a very wide range of personalities, which might account for the frequency of the appearance of such a diagnosis in many psychiatric and psychological reports tendered in the criminal courts. 

24. Dr Raeside said in his report:

    Mr Yost appears to have an underlying Antisocial Personality Disorder.  This represents a lifelong history of difficulties with relationships, unlawful behaviour, impulsivity, irritability and anger, failure to sustain consistent work, and a childhood history of Conduct Disorder.  This is a personality style that is often associated with a history of childhood abuse and neglect, and poor educational and social opportunities and attainments.

25. Notwithstanding that diagnosis Dr Raeside concluded that there is no indication that at the time the appellant committed the offences (that is to say the murder and the sexual offences) he was unaware of the nature and quality of his actions, nor is there any evidence that any mental impairment rendered him unable to control his conduct. 

26. It would appear from all of the material before the Judge including Dr Raeside’s report that the mental state of the appellant at the time of the offending was likely to have been caused more by the appellant’s consumption of illicit drugs such as cocaine, amphetamines and steroids than by any mental disorder. 

27. Dr Raeside concluded that the behaviour alleged against the appellant was consistent with antisocial personality disorder rather than due to any mental illness. 

28. Thus it can be seen that the references by Dr Raeside to an underlying antisocial personality disorder might be understood more as a description of the appellant’s personality than a serious mental illness which might have reduced the appellant’s moral culpability for the offending.  In this context it is important that Dr Raeside made no suggestion that the appellant was unable to control his aggressive behaviour.  In my view the report of Dr Raeside does not provide any basis for treating the appellant’s personality disorder as reducing his moral culpability for the offending.  In these circumstances I do not consider that there was any error on the part of the sentencing Judge in failing to mention it.

29. I turn now to the appellant’s next complaint that the discount given for the plea of guilty was inadequate.  Again this complaint needs to be evaluated in the light of the facts. The appellant was arrested on the charge of murder on 5 February 2007.  The charges were not committed to the Supreme Court for trial until almost two years had elapsed.  The appellant was first arraigned in the Supreme Court on 2 March 2009 and later that month the matter was listed for trial to commence in August 2009.  It was not until 29 June 2009 that the appellant pleaded guilty as charged. 

30. For the sexual offences the appellant was first arraigned in the District Court on 23 March 2009.  There were a further five appearances in the District Court before pleas of guilty were ultimately entered in the Supreme Court. 

31. The appellant did indeed offer to plead guilty in January 2009 however that offer was to plead guilty to manslaughter not murder.  The offer to plead guilty to the sexual offences at that time was made contingent on the offer to plead guilty to manslaughter being accepted. 

32. During sentencing submissions before the Judge, counsel then appearing for the appellant conceded quite properly in my view that the pleas were entered “at a later stage”. 

33. It should also be noted that the evidence in relation to both the murder and the sexual offending to be presented by the prosecution was overwhelming.  There was evidence sufficient to prove the sexual offending in the videos and photographs seized from the appellant’s house at the time of the investigation for the murder. 

34. Likewise the prosecution case on the murder charge was very strong.  There was evidence that the appellant sought the assistance of others to help him clean up the house, there was a long history of domestic violence, some of which was recorded on video, and the body of the deceased was found at the appellant’s home. 

35. In light of these circumstances I consider that the discount afforded to the appellant for the pleas was within the range to be expected where a plea is entered, not at the earliest opportunity, but at a much later stage.

36. I turn to the appellant’s next submission that the prominence of the Judge’s remarks in relation to his viewing of the video in the context of his sentencing remarks as a whole, suggests that the sentencing Judge was unduly affected by what he saw on the video and therefore has in effect, wrongly sentenced the appellant for uncharged acts of violence against the victim of the murder.  It is common ground that the video viewed by the Judge contained footage of the appellant assaulting his partner on another occasion than the occasion of the murder. 

37. It is obvious from his sentencing remarks that the Judge was mindful of the need to avoid making that error.  In the course of sentencing submissions he was asked to look at the video.  That request was apparently made in the context of the prosecution submission that the contents of the video were relevant to enable the Judge to understand the true nature of the relationship between the appellant and the victim, and to support the submission that the prospects of rehabilitation were slight.  The Judge did view the footage and formed the view, which he expressed, that the behaviour of the appellant was cruel and sadistic.  There has been no dispute that the Judge’s description is accurate.  No doubt conscious of the need to ensure that the appellant was not to be sentenced for other offending for which he had not been charged, the sentencing Judge explicitly stated in the sentencing remarks that “I am conscious that I must not punish you for the offences for which you have not been charged, namely the previous assaults and imprisonments of your victims”.  Those remarks made by an experienced judge in the criminal court should not lightly be ignored. 

38. The issue here is whether the non‑parole period imposed by the Judge is, in all the circumstances, manifestly excessive. 

39. Section 18A of the Criminal Law (Sentencing) Act 1988 (SA) does permit a judge to fix a single sentence for multiple offences. The sentencing Judge could have fixed, or at least indicated, a nominal sentence for the sexual offending. In my view he did not make any error in not doing so. I would add however that the references to the sexual offending were very brief. The real gravity of that offending is not apparent from the sentencing remarks. That is perhaps not surprising given that the primary focus during the sentencing submissions was understandably on the circumstances surrounding the murder. Nevertheless in light of the criticisms which have been made about the lack of transparency in the sentencing remarks it is helpful to revisit the observations of Doyle CJ in R v Symonds [1999] SASC 217 at [22]:

    In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.

1. In my view had the Judge adopted the approach suggested by Doyle CJ in Symonds the criticism of the sentencing remarks made on this appeal would inevitably have fallen away. 

2. An examination of the circumstances surrounding the sexual offending serves immediately to clarify why the sentencing Judge arrived at a non‑parole period of 30 years after taking into account the guilty pleas entered by the appellant.  There are sound practical, as well as policy reasons, why in all of the circumstances of this matter it would have been helpful for the Judge to have nominated or given some indication of the head sentence for the sexual offending.

3. As I have said both sets of offending were extremely serious. A primary policy of the criminal law is to protect the safety of the community. As well in sentencing for any offence involving sexual exploitation of a child paramount consideration should be given to the need for deterrence. See s 10(2) and s 10(4) of the Criminal Law (Sentencing) Act 1988 (SA). There can be no criticism of the Judge for regarding those considerations as his primary responsibility when sentencing the appellant.

4. When the circumstances surrounding the commission of both episodes of offending are properly appreciated it is immediately evident why the Judge set the non‑parole period at 30 years.  It is true that the effect of that non‑parole period will mean that the appellant will be an old man when eligible for release from prison.  That arises partly as a consequence of the statutory regime imposing a mandatory minimum non‑parole period for the crime of murder.  However, in a very real sense it might be said that it is the inevitable consequence of the appellant’s extremely serious criminal behaviour.

5. For these reasons I would dismiss this appeal.