Stewart v The King

[2023] SASCA 126

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

STEWART v THE KING

[2023] SASCA 126

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Kimber)

23 November 2023

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - ROLE OF GUILTY PLEA OR DEPOSITIONS

After the commencement of his trial, the appellant pleaded guilty to the offence of Aggravated Recklessly Causing Harm contrary to s 24 of the Criminal Law Consolidation Act, 1935 (SA).  On at least two occasions, the appellant struck the victim with his fists.  The victim was particularly vulnerable.  Earlier the same day, the victim had been abducted and assaulted by others.  The earlier assault involved the victim being struck to the face more than once before being placed in the boot of a vehicle and then being taken to the appellant.  The appellant then struck the victim while she was still in the boot of the car.  The next day the victim went to hospital.  She had fractures to her face. 

In sentencing the appellant to a head sentence of three years and one month with a non-parole period of one year and seven months, the sentencing Judge found that the appellant had caused the fractures to the face of the victim.  In making that finding, the sentencing Judge relied upon evidence given by the victim in the trial of other offenders and after the appellant had pleaded guilty. 

On appeal, the appellant contended that it was not open for the sentencing Judge to rely on evidence given in his absence after he had pleaded guilty and that the sentencing Judged erred in not conducting a disputed facts hearing.  The appellant also contended that the finding that he had caused the fractures to the face of the victim was not open. 

Held by the Court:

1. Pursuant to s 12 of the Sentencing Act 2017 (SA), the sentencing Judge was able to rely upon the evidence given in the absence of the appellant and did not fall into error in doing so.

2.      The sentencing Judge did not fall into error in not holding a disputed facts hearing.  It was not      for the sentencing Judge to hold such a hearing in the absence of an application by counsel.          No such application was made. 

3.      Given the earlier assault of the victim, it was not open to the sentencing Judge to find beyond       a reasonable doubt that the fractures to the face of the victim had been caused during the      offence committed by the appellant.

4.      The appeal is allowed.

5.      The appellant is re-sentenced to a head sentence of two years, seven months with a non-parole     period of 16 months. 

Criminal Law Consolidation Act 1935 (SA) ss 24, 158; Sentencing Act 2017 (SA) ss 12, 40, 71, 96, referred to.

R v Fresiello [2020] SASCFC 127; Kentwell v the Queen (2014) 252 CLR 601; R v Kreutzer (2013) 118 SASR 211; R v Perdikoyiannis, Condo and Peabody [2011] SASCFC 82, applied.

The Queen v Perre (1986) 41 SASR 105, not followed.

STEWART v THE KING
[2023] SASCA 126

Court of Appeal — Criminal: Livesey P, David JA and Kimber AJA

THE COURT:

1. After his trial commenced, the appellant pleaded guilty to Aggravated Recklessly Causing Harm contrary to s 24 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for that offence is imprisonment for seven years.

2. The sentencing Judge commenced with a starting point of three years, six months and a non‑parole period of two years.  Both starting points were reduced by five months for eight days in custody and one year, one month and 14 days on home detention bail.  The result was a head sentence of three years and one month and a non‑parole period of one year and seven months.  The sentencing Judge declined to order the sentence be suspended or served on home detention. 

3. The sentencing Judge found that in committing the offence, the appellant caused fractures to the face of the victim.  The real issue in the appeal is whether that finding was open beyond a reasonable doubt.  The appellant contends that it was not.  The appellant also advances other complaints as to the approach of the sentencing Judge in making that finding. 

4. We agree that it was not open to find beyond a reasonable doubt that the appellant had caused the fractures to the face of the victim.  We allow the appeal.  We quash the sentence imposed and re-sentence the appellant to a head sentence of two years and seven months with a non-parole period of 16 months, to commence on 15 February 2023.  Our reasons follow. 

   The offence

5. Other than the question of whether fractures to the face of the victim were caused by the appellant, the circumstances of the offence are not in dispute. 

6. The appellant and the victim had known one another for about 12 months before the offence.  In November 2019, the appellant and the victim went to a hotel.  While the appellant was asleep, the victim took some of his property and stole his car.  The victim left the car a short distance away but took items from it.  The appellant and others engaged in efforts to locate the victim.  For example, on 4 December 2019 the appellant communicated with a Mr Harrison about the progress of Mr Harrison’s efforts to find the victim. 

7. This culminated in the offence committed by the appellant on 7 December 2019 and the commission of other offences by other offenders.  Those other offenders were Mr Barry, Mr Harrison, Mr Gardiner and Mr Davies, each of whom also committed offences on 7 December 2019 involving the same victim.  Mr Harrison pleaded guilty to offences of False Imprisonment and Aggravated Causing Harm with Intent to Cause Harm.  Messrs Barry, Davies and Gardiner were tried by the same jury before which the appellant entered his guilty plea.  Mr Barry was found guilty of False Imprisonment, Aggravated Causing Harm with Intent to Cause Harm and Aggravated Recklessly Causing Harm.  Mr Davies was found guilty of False Imprisonment and Aggravated Causing Harm with Intent to Cause Harm.  Mr Gardiner was found guilty of False Imprisonment. 

8. By 6 December 2019, at least Mr Harrison, Mr Barry and Mr Davies were formulating a plan to abduct the victim. 

9. On 7 December 2019, Mr Davies met the victim in the city before boarding a train which departed at 6.12pm.  Unbeknownst to the victim, Mr Harrison was on the train and working with Mr Davies.  At 6.37pm, the victim and Mr Davies left the train at the Glanville train station.  Mr Harrison did the same.  While Mr Davies and the victim walked away from the train station and to a nearby street, Mr Harrison went to a car being driven a person only identified by the sentencing Judge in her remarks as ‘P’.  P drove Mr Harrison to the street where the victim was with Mr Davies. 

10. Mr Harrison exited the car and assaulted the victim by punching and kicking her (the first assault).  The trial Judge described this assault as a violent one.  In her affidavits before trial, the victim said she could not remember how many times she had been punched and kicked.  She said it could have been ‘as little as five or six, or as many as 20’ blows.  The victim said at least some blows were to her face.  After the guilty plea of the appellant and therefore in his absence, the evidence of the victim included that she was punched and kicked to the face; that she could not say how many times; and that she may have been unconscious.  The victim said she had been kicked to the centre of the face, over her nose, with the force being sufficient force to cause her head to ‘bounce’.  The victim said that her head was going ‘back and forwards’ and was ‘thrown back’.  The victim said the assault caused her to feel ‘very, very sore’. 

11. The first assault having been committed, the victim was placed in the car and driven to Salisbury East.  Mr Barry was waiting there.  Mr Barry had been in contact with the appellant and others about the victim.  At 6.22pm, the appellant had sent Mr Barry a text message which read, ‘this is your chance to get that slut, better not fuck it up bro’. 

12. The victim arrived at Salisbury East with Mr Harrison and in the car driven by P at 7.10pm.  The victim was in the backseat.  Mr Barry entered the backseat and placed duct tape on the hands, feet and mouth of the victim.  The victim was then placed in the boot of another car which was then driven by Mr Barry. 

13. With the victim in the boot of the car, Mr Barry drove to the hills to collect the appellant.  Once the appellant was collected, in a journey that took about 10 or 15 minutes, Mr Barry then drove to a remote area where he stopped the car and the boot was opened.  The appellant told the victim that she was never going to see her children again. 

14. The appellant then committed the offence the subject of this appeal.  While the victim was in the boot, the appellant punched her to the head.  The sentencing Judge found that occurred ‘a couple of times’ and that it was forceful.  In her evidence at trial, the victim said that she was punched ‘like on top of, on the top of my head and my forehead’.  The victim could not say if it was in the middle or on either side of her forehead.  The victim said the punches ‘stung’ and that she assumed the stinging was the consequence of her skull being fractured. 

    The medical evidence

15. The victim gave evidence that after the offence committed by the appellant, she found out that where she had been struck was where her skull was fractured.  Assuming this was said to the victim by a medical practitioner, it must have been said at the Lyell McEwin Hospital. 

16. The victim was admitted to the Lyell McEwin Hospital on the evening of 8 December 2019.  A CT scan was performed.  The CT scan showed a mildly depressed acute fracture of the right eye socket; mild irregularity of the bone adjacent to the right eye socket possibly indicating a very short skull base fracture; and a fractured nose with multiple displaced bony fragments on both sides of nose. 

17. There were affidavits from Dr Underwood and Dr Tariq before the sentencing Judge.  Both worked at the Lyell McEwin Hospital.  No opinion was expressed in either affidavit as to the cause of the fractures. 

18. No medical practitioner was called at the trial of Messrs Barry, Davies and Gardiner but facts were agreed by those three defendants and the prosecution.  As he had entered a plea of guilty, the appellant was not a party to the agreed facts.  The agreed facts set out the opinion of Dr Underwood as being that the injuries to the victim were ‘consistent with being punched many times to the face and head’; and that Dr Underwood ‘cannot reach a conclusion as to when [the victim’s] skull was fractured but is of the opinion that the fractures to [the victim’s] skull may have been exacerbated by further punches to the face or head’. 

    Submissions before the sentencing Judge as to the fractures

19. After the trial, the sentencing Judge heard submissions on sentence from the then counsel for the appellant, counsel for the other four men and the prosecution.  Those submissions were heard on 4 October 2022 and 6 December 2022. 

20. During the submissions on 4 October 2022, the sentencing Judge put that the skull fractures had been caused by the appellant.  Counsel for the appellant submitted that finding could not be made beyond a reasonable doubt.  The sentencing Judge raised the possibility of a disputed facts hearing.  The submission of counsel for the respondent was to the effect that due to the first assault, there would be a difficulty in the issue being resolved by such a hearing.  The sentencing Judge indicated that having heard the evidence, she did not agree and said she would provide counsel with references to the transcript.  Counsel for the appellant said that he would not say anything more ‘at this point’ and would ‘take the opportunity to make submissions on the next occasion’. 

21. The next occasion was 6 December 2022.  On that occasion, counsel did not develop his submissions as to the cause of the fractures.  Counsel simply directed her Honour’s attention to the submissions made on the earlier occasion. 

    The findings of the sentencing Judge as to the fractures

22. In her sentencing remarks, the sentencing Judge found the fractures to the face of the victim were consistent with the description of the forceful blows given by the victim when punched by the appellant and that the punches of the appellant caused the fractures to the face.  In making those findings, the sentencing Judge relied upon the evidence of the victim given in the trial after the appellant’s plea of guilty. 

    The issues in the appeal 

23. The real issue in the appeal is whether it was open to the sentencing Judge to find that the appellant had caused the fractures.  Before turning to that issue, it is appropriate to deal with other complaints advanced by the appellant as they have general importance. 

    Error in considering the evidence given at trial

24. The appellant submits that the sentencing Judge should not have had regard to the evidence of the victim given at trial.  The appellant submits that regard to that evidence was not appropriate as he had entered a guilty plea and was not part of the trial when that evidence was given.  The appellant submits that it was only appropriate to sentence on the material within the brief at the time his plea was entered.  The appellant contends it was held in The Queen v Perre,[1] (Perre) that following a plea of guilty, the defendant is to be sentenced on what is set out within the sworn statements unless they are challenged by cross examination or the calling of evidence. 

    [1] (1986) 41 SASR 105.

25. A sentencing Judge is not bound to sentence only on the material within the brief at the time of a plea of guilty. If the submission of the appellant were accepted, evidence given in the absence of an offender which mitigated his or her conduct or was otherwise favourable would have to be ignored as well. The submission of the appellant cannot be reconciled with s 12 of the Sentencing Act 2017 (SA) (Sentencing Act) which does not limit the material a sentencing Judge can consider in the way for which the appellant contends. Section 12 provides:

    For the purpose of determining sentence, a court—

    (a)     is not bound by the rules of evidence; and

    (b)     may inform itself on matters relevant to the determination as it thinks fit; and

    (c)     must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

26. Given the submission of the appellant, it is also necessary to say something about Perre.  It has been doubted that what was held in Perre reflects contemporary sentencing practice.  As Kourakis CJ held in R v Fressiello,[2] sentencing practice has changed in the three decades since Perre.  At the time Perre was decided, there was no provision equivalent to s 12 of the Sentencing Act.  The precursor to the Sentencing Act, the Criminal Law (Sentencing) Act 1988 (SA), had not been introduced. In any event, the issue in Perre was not the use in sentencing of evidence given in the absence of an offender.  There was no such evidence.  The issue in Perre was the approach a defendant needed to take if the statements relied upon by the prosecution, or inferences from those statements, were to be disputed.  Perre is not authority for a proposition as absolute as that for which the appellant contends.  King CJ only observed in Perre that a ‘sentencing Judge is ordinarily obliged to sentence on the statements or sworn depositions’ (emphasis added). 

    [2]     R v Fresiello (2020) 137 SASR 258, [33] (Kourakis CJ, Peek and Blue JJ agreeing); Calabrese v R [2022] SASCA 65, [15]–[17], [23]–[24] (Livesey P, Lovell and David JJA).

27. In this case, the evidence given at trial after the appellant entered his guilty plea was open to be considered in sentencing the appellant.  This does not mean the appellant was to be denied an opportunity to make submissions about the evidence given in his absence.  That opportunity was provided when the sentencing Judge raised with counsel the evidence given at trial.  She also told counsel that she would provide references to the evidence which she believed were contrary to the position of the appellant.  It was not suggested on appeal that did not occur. 

28. In an appropriate case, an offender might need to be provided with more than an opportunity to make submissions about evidence given in his absence.  In some cases, there may need to be an opportunity to test the evidence, or to lead further evidence, before evidence given in the absence of an offender can be relied upon.  This brings us to the second complaint of the appellant, the failure to hold a disputed facts hearing. 

    The failure to hold a disputed facts hearing

29. The appellant submits the sentencing Judge erred in not conducting a disputed facts hearing.  We do not agree. 

30. The approach of the sentencing Judge to this issue was appropriate.  As set out above, the sentencing Judge raised the possibility of a disputed facts hearing with counsel.  No application for such a hearing was made.  It is not for a Judge to convene a disputed facts hearing without an application from counsel.  The obvious inference from the approach of counsel is that he did not wish to pursue such a hearing.  When the issue was raised by the sentencing Judge, the effect of the submission of counsel was that he did not believe it would resolve the issue given what had occurred during the first assault.  The appellant was entitled to take the position that the burden could not be met.  On the issue in question, the onus was on the prosecution. 

    Whether it was open to find the appellant caused the fractures

31. We turn to the real issue in the appeal: whether the finding that the appellant had caused the fractures was open beyond a reasonable doubt as required. 

32. The blows delivered by the appellant were forceful and to the head. We do not doubt that such blows might cause fractures. Nonetheless, there had also been the first assault. That assault involved both punches and kicks to the face. Those blows were also forceful. We cannot exclude that those blows might have caused the fractures. The affidavits of Dr Underwood and Dr Tariq did not assist the prosecution in meeting its burden. Pursuant to s 12 of the Sentencing Act, the agreed facts were part of the material before the sentencing Judge and, subject to what has been said earlier, open to be relied upon.  Those facts also did not assist the prosecution in meeting its burden and left open that the fractures might have been caused in the first assault. 

33. In concluding it was not open to the sentencing Judge to make the finding that she did, we do not overlook the advantage that she had in seeing and hearing the victim give evidence.  Part of the evidence of the victim was that the blows delivered by the appellant caused stinging that was ‘really bad’.  Given the earlier assault, that was not a matter that had much, if any, weight in favour of the appellant causing the fractures.  We cannot exclude that what the victim felt was the result of blows being delivered to a face that was already fractured. 

34. The appellant also complains that the sentencing Judge gave inadequate reasons for finding that he caused the fractures.  Having concluded the finding was not open, it is not necessary to deal with that complaint. 

    Whether the appeal should be allowed

35. Having established error, the appellant submits the appeal should be allowed and the matter remitted to the District Court for resentencing.  The appellant submitted that was appropriate for reasons relating to his children.  The situation with the children will be set out below.  It is not a basis to remit the matter.  There is insufficient reason to believe that the situation will be resolved relatively soon in a way that might be material to sentence.  The District Court is not in any better position to re‑sentence than this Court. 

1. Error in the process of sentencing having been established, it does not follow that the appeal must be allowed.  The Court must determine the sentence it would impose.  It is only if that sentence is less than that imposed at first instance that the appeal should be allowed.[3] 

   [3]     Criminal Law Consolidation Act 1935 (SA) s 158(7); Kentwell v the Queen (2014) 252 CLR 601, [43] (French CJ, Hayne, Bell, Gageler and Keane JJ); R v Kreutzer (2013) 118 SASR 211, [10], [17].

   Personal circumstances

2. The appellant is 38 years of age.  He has prior convictions which have resulted in fines, community service and licence disqualifications.  The appellant is married with four children.  The youngest child is three years of age, the eldest is 13.  At the time of sentence, the appellant was living with his wife and children.  Since sentence, apparently due to the drug use of the mother, the children have been removed from her care.  The children have been placed separately.  There are proceedings in the Youth Court with respect to the care of the children.  The appellant wishes to engage in those proceedings in the Youth Court with the aim of resuming contact with his children and ultimately resuming responsibility for their care. 

3. The appellant completed year 10 and worked in landscaping before moving to Queensland and working as a fly in, fly out worker.  In 2019, the appellant returned to South Australia with his partner and family. 

4. The appellant commenced using drugs in Queensland and continued to do so after his return to South Australia.  It appears drug use was an aspect of the connection of the appellant with the other offenders.  At the time of sentence, the appellant was employed in the construction industry.  His employer spoke positively of his interpersonal skills, creativity and success-oriented approaches.  A member of the Australian Army regards the appellant as a man with strong family values who is devoted to his wife and children. 

5. Before sentence, the appellant was on home detention bail for a little over 13 months.  He was drug tested four times and each test was negative.  The appellant was compliant with the other obligations of bail and was regarded by his supervising officer as a suitable candidate for community-based supervision. 

   The offence

6. There is no sentencing standard for the offence committed by the appellant.  This was a particularly serious example.  The appellant acted in retribution over the taking of property.  Attacks in revenge threaten the security of the community and undermine the way our system of justice operates.[4] 

   [4]     R v Perdikoyiannis, Condo and Peabody [2011] SASCFC 82, [42]–[44].

7. The conduct of the appellant was planned.  At the very least, he had become aware of events involving the victim more than about two hours before he struck her.  In that time, the victim had been restrained with duct tape.  The victim had succeeded in removing that duct tape by the time the appellant struck her, nevertheless he must have known the victim was in the boot of the car against her will.  The victim was vulnerable and defenceless.  In the presence of the appellant, the victim was driven to a secluded location.  At that location, the boot was opened and the victim was told by the appellant that she was never going to see her children again.  Using his fists, the appellant then struck the victim to the head more than once. 

   The sentence this Court would impose

8. We identify starting points of three years for the head sentence and 21 months for the non‑parole period.  The appellant is not entitled to any reduction for his guilty plea.  It was entered after the trial had commenced.[5]  For the eight days in custody after arrest and one year, one month and 14 days on home detention, we make the same reduction as the sentencing Judge of five months from both the head sentence and non-parole period.  We impose a head sentence of two years, seven months and a non-parole period of 16 months. 

   [5]     Sentencing Act s 40(3).

9. The personal circumstances of the appellant, including the time in custody since sentence and the issues surrounding his children, must be weighed in considering whether good reason to suspend exists or, in the alternative, whether a sentence on home detention is appropriate.  Good reason to suspend the sentence does not exist.[6]  For the reasons given, the offence was a particularly serious example of an offence of its type. 

   [6]     Sentencing Act s 96.

10. The appellant had been on home detention bail for more than 13 months before sentence.  His compliance had been good.  His supervising officer considered him appropriate for community-based supervision.  The appellant cared for his children while on home detention and wishes to do resume doing so.  Notwithstanding those matters and the balance of his personal circumstances, we decline to order that the sentence be served on home detention.  The seriousness of the offence is such that a home detention order may affect public confidence in the administration of justice.[7] 

    [7]     Sentencing Act s 71(2)(a).

    Orders

    1.The appeal is allowed. 

    2.The sentence imposed below is quashed. 

    3.The appellant is resentenced to a head sentence of two years, seven months with a non‑parole period of 16 months, to commence on 15 February 2023.