Talbot v The Queen (No 2)

Case [2019] SASCFC 113

Supreme Court of South Australia

(Court of Criminal Appeal)

TALBOT v THE QUEEN (No 2)

[2019] SASCFC 113

Judgment of The Full Court

(The Honourable Justice Kelly, The Honourable Justice Parker and The Honourable Auxiliary Justice David)

27 September 2019

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - PARTICULAR CASES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY

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

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - CONTRITION

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD

This is an appeal against the fixing of a non-parole period of 24 years following the conviction of the applicant for murder.

On 1 February 2017, the applicant inflicted numerous injuries to the victim, including stomping on his head, which caused the victim’s death. The applicant had been consuming alcohol over the course of the day prior to the murder. After the murder, the applicant placed a fruit cake on the victim’s head, departed the victim’s home and continued to consume alcohol nearby while bragging about having attacked the victim.

The applicant advances two grounds of appeal. First, he contends that the non-parole period is manifestly excessive in that the sentencing Judge failed to have adequate regard to his Aboriginality and his plea of guilty to manslaughter in evaluating his prospects of rehabilitation and his contrition. Secondly, the Judge failed to make a finding as to the objective seriousness of the offending.

Held, per Parker J (Kelly J and David AJ agreeing), granting permission to appeal but dismissing the appeal:

1.  The totality principle does not apply where a defendant is being sentenced for a single offence (at [67]).

2.  The applicant's age does not support the setting of a shorter non-parole period (at [68]-[71]).

3.  The Judge did not err in failing to refer specifically to the applicant’s Aboriginality in his sentencing remarks (at [72]-[78]).

4.  The applicant’s plea of guilty to manslaughter was not indicative of remorse (at [79]).

5.  The Judge’s conclusion that the applicant’s rehabilitation prospects were poor was supported in context (at [80]).

6.  The Judge did not err by failing to specify the objective seriousness of the offence (at [81]-[82]).

7.  The non-parole period of 24 years was not excessive and was squarely within the range reasonably available to the Judge (at [83]).

Sentencing Act 2017 (SA) s 48, referred to.
Gulyas v Western Australia (2007) 178 A Crim R 539, applied.
R v Peet [2018] SASCFC 91; Bugmy v The Queen (2013) 249 CLR 571; R v Tjami (2000) 77 SASR 514, distinguished.
Talbot v The Queen [2019] SASCFC 112; R v Pennington [2015] SASCFC 98; R v Fernando (1992) 76 A Crim R 58; R v Hallcroft (2016) 126 SASR 415

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AGLC
Talbot v The Queen (No 2) [2019] SASCFC 113
Case
[2019] SASCFC 113
Decision Date

CaseChat Overview and Summary

This case concerned an application for permission to appeal against sentence by the applicant, who had been convicted of murder following a jury trial. The applicant had initially pleaded not guilty to murder but guilty to manslaughter, a plea which the prosecution did not accept. The applicant's co-accused, Eldon Crouch, was acquitted of all charges. The appeal was heard by Kelly and Parker JJ and David AJ in the Full Court of the Supreme Court of South Australia.

The legal issues before the court included whether the sentencing judge had erred in their consideration of the applicant's Aboriginality as a factor in sentencing, and whether the non-parole period of 24 years was excessive, particularly in light of the applicant's age at the time of sentencing (50 years old). The court was also required to consider the relevance of the totality principle in sentencing for a single offence.

The court reasoned that while Aboriginality is a relevant factor in sentencing, there was no evidence before the sentencing judge that the applicant's background explained the particular offence, which appeared to stem from jealousy. The court found no evidence of extreme violence in the applicant's childhood or formative years that would have been explained by his Aboriginal heritage. Regarding the non-parole period, the court acknowledged principles relating to the sentencing of aged offenders, including considerations of reduced moral culpability due to advanced age, increased arduousness of imprisonment due to ill health or frailty, and the impact on the expectation of useful life after release. However, the court found that the applicant's conduct during a prolonged and brutal attack on a vulnerable victim, compounded by demeaning actions and remarks post-murder, justified the 24-year non-parole period as being within the reasonably available range. The totality principle was deemed not applicable as the applicant was sentenced for a single offence.

The court granted an extension of time to file the notice of appeal and granted permission to appeal on each ground. However, the appeal itself was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The respondent conceded that the application for permission to appeal against sentence was reasonably arguable. A Judge of this Court referred the question of permission to appeal to the Full Court. Background Upon the applicant being arraigned, he entered a plea of not guilty to the charge of murder but guilty to manslaughter. The prosecution did not accept that plea and the applicant was convicted of murder following a jury trial. Eldon Crouch was also charged with the murder on the basis of a joint criminal enterprise with the applicant, but was acquitted of both murder and manslaughter by the jury. The circumstances leading up to the murder of David Saunders by the applicant are set out in the judgment of Stanley J in Talbot v The Queen relating to the applicant’s unsuccessful appeal against conviction.[1] It is necessary for the purposes of this sentencing appeal to refer to some additional factual matters.[1] [2019] SASCFC 112.The applicant’s conduct before and after the murder The applicant spent much of 1 February 2017, the day of the murder, consuming alcohol. His first purchase of alcohol was made at 9:10 am. The applicant’s behaviour over the course of the day varied from being aggressive to being polite and friendly. In the early afternoon, the applicant engaged in an altercation with his adult son, Kasey Talbot, and his son’s friend, Ian Hall-Philp. That incident occurred at the applicant’s home at 46 Heysen Parade, Hayborough. The applicant was hit by his son with a piece of wood and sustained a cut to his nose. The applicant struck Mr Hall-Philp with a piece of wood four times across the lower back. It does not appear that Mr Hall-Philp sustained any significant injury. The applicant’s son requested that the police attend at 46 Heysen Parade. At about 2:20 pm, apparently with the intention of diffusing conflict, the police took the applicant to 90 Mentone Road, Hayborough. The applicant agreed to that move. The victim and Mr Crouch lived at 90 Mentone Road. The victim was present when the applicant arrived with the police. The police observed that the applicant and the victim were talking and laughing after the applicant left the police car. He took with him between 10 and 15 cans of beer. Mr Crouch returned to 90 Mentone Road about one hour after the applicant had been dropped there by the police. At about 6:00 pm Roger Perry, a friend of the deceased and Mr Crouch, arrived at the house and approached the back door. The applicant and Mr Perry did not know each other. The applicant was abusive to the deceased, Mr Crouch and Mr Perry. At that time the victim did not appear to have any injuries. The applicant spat at Mr Perry, threatened to kill him and his family and invited him to fight. As a result, Mr Perry left the premises. He subsequently telephoned the victim but the phone was answered by the applicant. During that call the applicant again threatened to kill Mr Perry and his family. At about 7:30 pm the applicant and Mr Crouch left the Mentone Road house and walked by way of Sinclair Street and Kaurna Avenue towards the applicant’s home at 46 Heysen Parade. Several witnesses who saw the two men at this time testified that the applicant acted in an aggressive, abusive and threatening manner towards them. The applicant also kicked a gate so forcefully that a mounting bolt was sheared off. However, there was also evidence from another witness that he behaved in a friendly manner towards her. The victim’s injuries

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even if I am wrong in my conclusion that there was no process error apparent in the Judge’s sentencing remarks, I do not consider that there was an outcome error. In other words, I do not consider that the non-parole period of 24 years was excessive. The applicant engaged in a prolonged and brutal attack on a victim who, because of his age and poor health, was unable to effectively defend himself. The evidence given by Dr Gilbert leaves no doubt as to the brutality and sustained nature of the applicant’s conduct. That brutality was compounded by the demeaning act of placing the fruit cake on the victim’s head, and the disparaging and contemptuous remarks that the applicant made to his associates after the murder. In those circumstances, I consider that the non‑parole period of 24 years was squarely within the range reasonably available to the sentencing Judge.Conclusion I would grant an extension of time within which to file the notice of appeal until 5 July 2019 (when the amended notice of appeal was filed). I would grant permission to appeal on each ground but dismiss the appeal. DAVID AJ: I would dismiss the appeal. I agree with the reasons of Parker J and the orders he proposes.

Ratio Decidendi

Legal Principle Established

While acknowledging that the applicant’s Aboriginality is a relevant factor in sentencing, the respondent points out that there had been no submission to the sentencing Judge that the applicant’s Aboriginality somehow explained the particular offence. To the contrary, the respondent submits that the only evidence before the Judge was that the applicant had acted out of jealousy. It was not apparent what his Aboriginal background had to do with his decision to assault the victim viciously because of a disagreement about a woman. The respondent further submits that there was no evidence before the Court that the applicant had been exposed to extreme violence through his childhood and formative years. The only information put before the Judge was that the applicant’s father was an alcoholic, but he did not have a lot of contact with him other than seeing him on holidays. While the applicant had wanted to live with his father, his mother would not permit this. The applicant recalls that his mother’s new partner treated him quite well. In these circumstances, and taking into account that the applicant did not provide any explanation to the Court for his conduct, the respondent submits that his Aboriginality did not explain the offending.Consideration I accept the correctness of the respondent’s submission that the totality principle was not relevant to the sentencing of the applicant. While this Court held in R v Peet that the totality principle is relevant to the setting of a non‑parole period in relation to a life sentence for murder, that observation was made in a case where the appellant had been sentenced for three murders.[16] The totality principle does not apply where a defendant is being sentenced for a single offence. [16] [2018] SASCFC 91 at [91] (Kourakis CJ, Doyle and Hinton JJ). I turn to the applicant’s complaint that his age was not properly recognised in setting the non‑parole period. The applicant’s sentence was backdated to 1 February 2017 when he was taken into custody. At that time, he was aged 50 years. Thus, he will be aged 74 years when he becomes eligible for parole. In Gulyas v Western Australia, Steytler P (with McLure and Miller JJA agreeing) identified the following principles as being relevant to the sentencing of aged offenders:[17]It seems to me that the following broad general principles might be extracted as being ordinarily applicable in a case such as the present: (1) Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor. (2) Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this.(3) Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release.(4) Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime.[17] (2007) 178 A Crim R 539 at 552 [54] (Steytler P).