Tammaro v The King

[2022] SASCA 103

Supreme Court of South Australia

(Court of Appeal: Criminal)

TAMMARO v THE KING

[2022] SASCA 103

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Justice David and the Honourable Auxiliary Justice Mazza)

5 October 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - STALKING - SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE

On 13 July 2022, the applicant was sentenced for the offences of unlawful stalking (Count 1) and aggravated assault causing harm (Count 2).

For Count 1, the sentencing Judge commenced with a starting point of imprisonment for 12 months, reduced by five per cent on account of his guilty plea to 11 months and 13 days. For Count 2, the sentencing Judge commenced with a starting point of two years imprisonment, reduced by 10 per cent on account of his guilty plea to one year, nine months, and 19 days. The sentences were ordered to be served cumulatively.

The sentencing Judge calculated the accumulated head sentence as two years, six months, and 22 days imprisonment. In fact, the sentence was two years, nine months, and two days imprisonment. Two months and seven days was deducted on account of time spent in custody and on home detention bail, which was calculated as resulting in a head sentence of two years, four months, and 15 days. In fact, it resulted in a head sentence of two years, six months, and 26 days imprisonment. A non-parole period of 15 months was fixed.

The applicant applies for permission to appeal against his sentence on the singular ground that the sentence should have been ordered to be served on home detention.

Held, per the Court, rectifying the sentence and refusing permission to appeal:

1.Pursuant to s 20 of the Sentencing Act 2017 (SA) and s 5(1) of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA), the technical error of the sentencing Judge in calculating the sentence is rectified; a head sentence of two years, six months, and 26 days imprisonment with a non-parole period of 15 months is imposed. The sentence is to commence from 13 July 2022.

2.      Permission to appeal against sentence is refused.

Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) s 5; Sentencing Act 2017 (SA) ss 20, 71, referred to.
Liddicoat v The Queen [2021] SASCA 18; R v Dell (2016) 126 SASR 571; R v Hunt [2018] SASCFC 137; R v Singh (2018) 132 SASR 1; The Queen v Bechara [2022] SASCA 37; The Queen v Perrey [2022] SASCA 51, considered.

TAMMARO v THE KING
[2022] SASCA 103

Court of Appeal – Criminal:  David JA and Mazza AJA

1. THE COURT:  On 13 July 2022, the applicant was sentenced for the following offences: unlawful stalking, for which the maximum penalty is three years imprisonment (Count 1); and aggravated assault causing harm, for which the maximum penalty is five years imprisonment (Count 2). 

2. For Count 1, the sentencing Judge commenced with a starting point of imprisonment for 12 months, reduced by five per cent on account of his guilty plea to 11 months and 13 days.  For Count 2, the sentencing Judge commenced with a starting point of two years imprisonment, reduced by 10 per cent on account of his guilty plea to one year, nine months, and 19 days.  The sentences were ordered to be served cumulatively. 

3. The sentencing Judge calculated the accumulated head sentence as two years, six months, and 22 days imprisonment. It was in fact two years, nine months, and two days.  Two months and seven days was deducted on account of time spent in custody and on home detention bail, which although calculated as resulting in a head sentence of two years, four months, and 15 days, in fact resulted in a head sentence of two years, six months, and 26 days imprisonment. A non-parole period of 15 months was fixed.

4. We consider that the error by the sentencing Judge in calculating the accumulated sentence is amenable to correction pursuant to s 20 of the Sentencing Act 2017 (SA) (‘Sentencing Act’) and s 5(1) of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) (‘Judicial Administration Act’).  That section is applicable where the intention of the sentencing judge can be confidently ascertained and the nature of the identified error is technical.[1]  In addition, it has been held that this provision is not available where its application requires a fresh exercise of the sentencing discretion.[2] Pursuant to s 20 of the Sentencing Act and s 5(1) of the Judicial Administration Act, we rectify the technical error so the sentence imposed is a head sentence of two years, six months, and 26 days imprisonment, with a non-parole period of 15 months.

   [1]     The Queen v Perrey [2022] SASCA 51 at [21] per Livesey P and Lovell JA; R v Singh (2018) 132 SASR 1 at [8] Blue J; The Queen v Bechara [2022] SASCA 37 at [16]–[17] per Kourakis CJ, Lovell and Doyle JJA.

   [2]     The Queen v Perrey [2022] SASCA 51 at [21] per Livesey P and Lovell JA; R v Hunt [2018] SASCFC 137 at [22]–[35] per Stanley J (with whom Kelly J agreed), at [90]–[98] per Hinton J.

5. The applicant was placed on a good behaviour bond in March 2018 for an assault committed on another former partner in 2016. It was accepted that his current offending breached the bond. The sentencing Judge estreated the bond, convicted the applicant of the original offence, and imposed no further penalty. That sentence is not the subject of this appeal.

6. The applicant applies for permission to appeal against his sentence on Counts 1 and 2 on a single ground; namely, that the sentence should have been ordered to be served on home detention.

   Circumstances of the offending

7. The applicant and the victim were in an off and on relationship from December 2016 until February 2018.  Between February and 12 June 2018, despite the relationship being at an end, the applicant continued to contact the victim.  That contact included sending messages threatening to post sensitive images of her on Facebook and threating to tell her son that she was pregnant.  There were occasions when the applicant made up to 200 calls per day to the victim’s telephone.  Some of the telephone calls revealed that the applicant was following the victim or monitoring her movements. 

8. On 12 June 2018, the victim was driving on the Northern Expressway at about 90 kph when she observed the applicant following in his vehicle.  The applicant overtook her vehicle, braked, and then travelled back into the right hand lane, alongside the victim.  At that time, the applicant swerved his vehicle, causing its front passenger side to contact the front driver’s side of the victim’s vehicle.  The impact caused her vehicle to be pushed off the road and into a ditch, before coming to a stop.  As a result of the incident, the victim suffered neck, back, shoulder and hip pain.  She felt ongoing fear and anxiety whenever she left her house.  She moved away from the suburb where she was living and lost friends.  She has had difficulty remaining in employment. 

   Personal circumstances of the applicant

9. The applicant was 34 at the time of the offending and 37 at the time of sentence.  He has limited antecedent history.  The applicant left school aged 13 and was described as functionally illiterate and innumerate.  At the age of 16, he witnessed the death, in traumatic circumstances, of his friend on a construction site, from which he developed post-traumatic stress disorder.  The applicant obtained his truck driver’s licence at 16 and worked in a family business. He was described as having an ‘excellent employment history’. The sentencing Judge received letters of support which described the applicant as hardworking and a responsible member of his family business. 

10. The applicant was married for four years and has a daughter aged 15.  He has only had contact with her for the past three years. They now have regular and positive contact. In a comprehensive psychological report by Mr Richard Balfour dated 25 August 2021, the applicant was diagnosed as having an intellectual disability of mild severity with a limited ability to cope with stress and a limited capacity for problem-solving.

    The application

11. The applicant contends that the sentencing Judge was in error in not imposing a home detention order. He submits that he was a suitable candidate for home detention and that such an order would not affect public confidence in the administration of justice.  In making that submission, the applicant relies on Mr Balfour’s opinion that ‘[h]e does not present an “appreciable risk” to the safety of the general community’.[3]  Mr Balfour also expressed confidence that the applicant would be compliant with any court orders and that, with the assistance of a supervised, structured rehabilitation program, his prognosis to cease offending was good. 

    [3]     Forensic Psychological Report of Mr Balfour dated 25 August 2021 at 21–2.

12. The applicant also emphasises Mr Balfour’s opinion that he would benefit from a community-based order which allowed for cognitive-behavioural therapy sessions with a clinical psychologist, noting that the applicant was likely eligible for a National Disability Insurance Scheme community funding package to assist in his rehabilitation efforts. 

13. The applicant also stresses that general deterrence played a lesser role in sentencing because of the applicant’s intellectual disability, which causes him difficulties in fully appreciating the impact of his behaviour on others. The applicant’s treating psychologist, Ms Dianne Narciso, opined that the applicant does not have the intellectual capacity, nor the social skills, to cope well in custody.  Thus, a term of imprisonment will result in hardship for the applicant.

14. For the respondent it is submitted that no error has been demonstrated in the approach taken by the sentencing Judge. Nor can it be said that the decision to decline to order that the sentence be served on home detention was unreasonable or plainly unjust.

    Consideration

15. In submitting to the sentencing Judge that any sentence of imprisonment should be served on home detention, the applicant put forward two proposed home detention addresses: the first an address in Seaton where his current partner and her young child lived; and the second the address of his family business in Woodville North where he planned to reside in a caravan. The latter address was also that stipulated in the residential condition of his bail agreement.

16. The court may make a home detention order pursuant to s 71 of the Sentencing Act if it has imposed a sentence of imprisonment, it considers that the sentence should not be suspended, and it considers that the defendant is a suitable person to serve the sentence on home detention. The question of whether to order that a sentence be served on home detention involves a two stage process of consideration.[4]  The first stage involves an inquiry as to the suitability of the defendant to serve a sentence on home detention. If the court is satisfied that the defendant is a suitable person to do so, the second stage involves a broader consideration as to whether the court orders that the defendant serve the sentence on home detention. 

    [4]     Liddicoat v The Queen [2021] SASCA 18 at [34] per Bleby JA (with whom Kelly P and Lovell JA agreed); R v Dell (2016) 126 SASR 571 at [45]–[48] per Doyle J (with whom Kelly and Parker JJ agreed).

17. In undertaking this two staged process, the court is required to take into account those matters referred to in s 71(3) of the Sentencing Act, including the impact a home detention order is likely to have on any victim of the offence for which the defendant is being sentenced, any spouse or domestic partner of the defendant, and any person residing at the residence at which the prisoner would, if released, be required to reside.

18. Subsections 71(2)(a) through (d) of the Sentencing Act set out various matters prohibiting the court from making a home detention order in identified circumstances, which includes ‘if the court considers that the making of such an order would, or may, affect public confidence in the administration of justice’.[5]

    [5]     Sentencing Act 2017 (SA) s 71(2)(a).

19. In this case, the sentencing Judge determined that the applicant was not a suitable person to serve his sentence on home detention.  In reaching that conclusion, her Honour had regard to the following matters.

20. First, the impact that a home detention order would have on the applicant’s current partner and her child, noting that the Department for Correctional Services had raised such concerns. The applicant complains that there was no basis for the sentencing Judge to consider that a home detention order would have an impact on his partner and her child. We do not agree.

21. In a Home Detention Order Suitability Report dated 15 December 2021, the author said as follows: [6]

    Given the nature of these subject offences and that Home Detention changes the dynamic of a household, this may put the defendant’s partner … at risk. It is of further concern that [the appellant and his new partner] have only been in a relationship for five months and the defendant has accepted no responsibility for his abusive behaviour.

    [6]     Home Detention Order Suitability Report dated 15 December 2021 at 4.

22. Second, the applicant had difficulty complying with the residential condition of his bail agreement, which stipulated the Woodville North address. It appears that he had not been residing at this address. Rather, he was predominately living at an address in Seaton with his new partner and her child. Further, the applicant provided conflicting information to the author of a Home Detention Order Suitability Report and to the sentencing Judge about his living arrangements and whether he had ever lived at the proposed address at Seaton.

23. Third, the serious nature of the offending, including that it was committed only three months after he had been placed on a good behaviour bond for an assault against another previous partner.

24. Fourth, notwithstanding the applicant’s intellectual disability, principles of personal deterrence still had a role to play in sentence given that he appeared to lack insight and empathy for the victim, who he continued to blame for his offending. The applicant had also been named on three separate intervention orders prohibiting him from contacting his ex-wife and two previous partners, including the victim in this matter.

25. The sentencing Judge concluded that the applicant was not a suitable person to serve his sentence on home detention. Although not required to do so, her Honour also addressed the second stage of the process and determined that a home detention order would, in the circumstances of this offending, affect public confidence in the administration of justice.

26. We are satisfied that no error has been demonstrated in the approach taken by the sentencing Judge. In our view, it is not reasonably arguable that the decision not to order that the sentence be served on home detention was unreasonable or plainly unjust. The applicant’s offending in relation to Count 1 was sustained over three to four months. The text messages he sent to the victim were both menacing in their content and relentless in their number. This offending constitutes a serious example of the offence of unlawful stalking.

27. As to Count 2, the applicant’s conduct in effectively forcing the victim’s motor vehicle off an expressway whilst she was travelling at high speed was plainly dangerous and a frightening and traumatic experience for her. It has had a terrible impact upon her. Further, as the sentencing Judge acknowledged, offending which involves violence or threats of violence in the context of a person leaving a domestic relationship are inherently serious. Whilst the applicant’s reduced intellectual capacity meant that principles of general deterrence had less relevance, the applicant was, as Mr Balfour found, able to sufficiently appreciate the nature and quality of his actions and their wrongfulness. The offending remained serious. 

28. In concluding that the applicant was not a suitable person for a home detention order, the sentencing Judge correctly noted that the applicant was reported as lacking empathy for the victim. The applicant also committed his offending in breach of a good behaviour bond for an assault on a previous partner and he had not fully complied with his bail agreement. It is readily apparent that there was a sound basis for the sentencing Judge to take a guarded approach to the question of his compliance with a home detention order. In those circumstances, and notwithstanding the applicant’s rehabilitative efforts and the challenges he will face in custody, it is not reasonably arguable that the sentencing Judge erred in finding that he was not a suitable person to serve his sentence on home detention.

29. We would refuse permission to appeal against sentence.

30. The orders of the Court are:

    1.Pursuant to s 20 of the Sentencing Act and s 5(1) of the JudicialAdministration Act, we rectify the technical error of the sentencing Judge in calculating the sentence; a head sentence of two years, six months, and 26 days imprisonment with a non-parole period of 15 months is imposed. The sentence is to commence from 13 July 2022.

    2.     Permission to appeal against sentence is refused.