WARREN v Police

Case [2020] SASC 145

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

WARREN v POLICE

[2020] SASC 145

Judgment of The Honourable Justice Bleby

11 August 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ARSON AND LIKE OFFENCES - SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - INJURY OR DAMAGE TO PROPERTY - SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE

Appeal against a sentence imposed by a Magistrate.

On 4 August 2019, the appellant set fire to a tree and to the boarded-up window of an unoccupied house, and threw a rock through the window of another nearby house to alert the occupants to the fact that the tree was on fire. He then put a message on Facebook, saying that he had lit the fires and that the police had taken no action.

The appellant’s cousin had been found hanging from the tree in 2016. The appellant believed that the person he held responsible for the death resided at the house. He also believed that the police had not investigated the death properly.

On 13 March 2020, the appellant pleaded guilty to two counts of property damage and one  of arson. The appellant was remanded in custody and was sentenced on 16 April 2020. The magistrate imposed a sentence of imprisonment of 18 months after deducting 40 percent for an early guilty plea. He fixed a non-parole period of 10 months.

The appellant advanced nine grounds of appeal against the sentence. He required an extension of time to appeal.

Held, granting the application for an extension of time to appeal against the sentence imposed by the magistrate and allowing the appeal:

1. The sentencing magistrate erred in treating the fact of the appellant being on remand for other matters as a relevant consideration to the question of suspension of the sentence.

2. The sentence is set aside.

3. From a notional head sentence of 19 months imprisonment, reduced by 40 percent for the appellant’s early guilty plea, a head sentence of 11 months, one week and five days is imposed.

4. The sentence is partially suspended, such that the appellant is to serve a period of six months in prison, commencing 13 March 2020, with the remainder of the sentence suspended on the condition that he enter into a bond to be of good behaviour for a period of one year.

Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 2017 2017 (SA) s 96(3)(a), (4); s 47(5); Criminal Law Consolidation Act (SA) s 85(3), referred to.
House v The King (1936) 55 CLR 499, applied.
R v Goldsmith (1995) 65 SASR 373; R v McLean (2013) 118 SASR 280, discussed.
Da Silva v The Queen [2020] SASCFC 66;

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WARREN v Police [2020] SASC 145
Case
[2020] SASC 145
Decision Date

CaseChat Overview and Summary

The case of Warren v Police involves the appeal of a 29-year-old Aboriginal man convicted of arson. The primary legal issue addressed by the court was whether the sentencing magistrate erred in failing to properly consider the discretion to suspend the sentence. The appellant argued that the magistrate erred by considering the fact that he was on remand as a relevant consideration for suspension, which the court acknowledged was an error. The court also noted that the magistrate had indeed considered this factor, which was not determinative but rather speculative, given the uncertainty of the appellant's future custodial status.

The court examined the nature and circumstances of the offence, which involved the appellant setting fire to a tree near a house and then to the frame of a boarded-up window of another house, causing significant distress to the occupant. The appellant's background, marked by childhood exposure to alcohol abuse and violence, was considered as a mitigating factor. The court concluded that while the appellant's deprived background must be given full weight, it does not diminish the need to protect the community and uphold the law.

The court found that the conceded process error warranted setting aside the original sentence and imposing a new one. The reasoning included the nature of the offence, the appellant's background, and the appropriate weight to be given to mitigating factors without leading to a disproportionate penalty. The court emphasized the importance of considering the full context of the offender's background while balancing the purposes of punishment.

In light of the above, the court set aside the original sentence and imposed a new one, considering all relevant factors. The specific details of the new sentence were not outlined in the extract, but the process demonstrated a careful consideration of the legal principles and the unique circumstances of the appellant.

Orders

Orders of the court

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Background

Background to the litigation

For reasons which I will come to, it is only necessary to consider ground 2. I note, however, that grounds 3 to 8 simply comprise complaints that the magistrate failed to give adequate consideration to various personal circumstances relevant to the appellant. A complaint that inadequate or excessive weight was given to one or other factor does not of itself identify an appealable error.[1] These grounds are better understood as matters to be taken into account when considering the complaint of manifest excess in ground 1, should that have been necessary.[1] BRK v Police [2020] SASC 116 at [46] (Livesey J); R v Lutz (2014) 121 SASR 144 at [46]-[47], [51] (Vanstone and Parker JJ); Police v Chilton (2014) 120 SASR 32 at [17] (Kourakis CJ).Background The appellant is a 29-year-old Aboriginal man. He grew up in Coober Pedy and went to Coober Pedy Area School until year 8. He moved to Port Augusta when he was 14 and completed his education to year 10. He left school during year 11. He was raised by his extended family, initially with his maternal aunty and uncle. His elder siblings had been raised by his parents, but he was moved out of the household and into the care of other relatives, on account of his parents drinking and fighting. He was looked after by many family members once he moved to Port Augusta. He had intermittent contact with his father. He played football for the North Adelaide under 17s. When he moved back to Port Augusta with his father, he started drinking heavily. He stopped playing football when he was 18. He lost interest in school and felt that his family did not support his education. He has had intermittent and unsteady work. The appellant has been in one serious relationship by which he has had three children. They are aged nine, four and three. Prior to his being arrested, he was the sole carer of his sons. They are now with their mother.The offending On the night of Saturday 3 August 2019, the appellant had been drinking heavily. He was reflecting on the death of his cousin in 2016. His cousin had been found hanging from a tree in Coober Pedy. The appellant was significantly affected by this death. He had reached the view that a third party was responsible for the death and that the police had not investigated it properly. In the early hours of Sunday 4 August 2019, the appellant went to the tree where his cousin had been found. This was close to a house owned and occupied by a Ms Mason. The appellant set fire to the tree and then walked the short distance across the road to a house which he thought was owned by the person he held responsible for his cousin’s death. He set fire to the frame of a boarded-up window on the house. At about 4.45am, Ms Mason was woken by a noise. She saw flames at the base of the tree outside her bedroom window and rang 000, requesting the fire brigade. She then saw that the front of the house across the road also appeared to be on fire. She moved her car away from the fire in her yard and then rang 000 again, requesting police, as she was concerned that someone was lighting fires. She saw the appellant walking through the front gate into her yard and became very frightened. The appellant walked around her house, banging on walls, windows and doors. Ms Mason thought that he was angry and trying to break in.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The value of the property damage was not great. The potential for greater damage was real, but it appears unlikely that the window fire would have spread. Ms Mason was extremely frightened by the events of that early morning.The decision not to suspend Ground 2 of the appeal includes the complaint that the magistrate erred in failing to consider properly his discretion to suspend the sentence. In pursuit of that ground, the appellant pointed to the following paragraph of the magistrate’s Remarks on Penalty:The fact that you are, and will remain, remanded in custody on another matter is a relevant consideration although not necessarily determinative on the issue of whether it is appropriate to suspend the sentence. This is because, and this does apply in your circumstances, there would be little justification in suspending the sentence unless that went hand in you hand with you being able to be properly supervised by the Department of Correctional Services on an accompanying bond. Clearly it would not be possible for the Department of Correctional Services to supervise you outside custody if you remain remanded in custody for any appreciable period. At the moment, as I understand it, the period of time which you may remain remanded in custody on other matters cannot be determined with any certainty. Having weighed all the relevant considerations it is my view that there are no proper or good grounds on which to suspend the sentence. It is my further view that home detention or even an intensive corrections supervision order are not appropriate or available in your case. As the appellant accepted in oral argument, where a person has been convicted of other offending following the offence for which a sentence is being contemplated, that is directly relevant to the question of whether to suspend. Moreover, subject to a limited exception, if a person is sentenced to a term of imprisonment to be served cumulatively on, or concurrently with, another term of imprisonment, the sentence may not be suspended.[2][2] Sentencing Act 2017 (SA), s 96(3)(a), (4). However, the position is different where the person is on remand. There will often be no certainty as to how long it may take for the matters to which the remand relates to be resolved. In that circumstance, to treat the remand as a relevant consideration would seem to approach the utility of suspension from a position of speculation. This is illustrated by the eventuality in the present case, that the charges the subject of the remand did not proceed. The uncertainty of the appellant’s future custodial status required consideration of suspension without speculating that the remand would mean that there was little utility in any suspension, even with the qualifier that this consideration was not determinative. Not only was it not determinative, it was not relevant. Counsel for the Director conceded that it was an error for the magistrate to have categorised the fact of the remand as a relevant consideration. She also accepted that it was clear from the Remarks on Penalty that the magistrate had taken it into consideration. These concessions were appropriately made.

Ratio Decidendi

Legal Principle Established

It follows that it is open for me to sentence afresh. For the reasons that I give below, I take a different view from the magistrate as to the sentence that should have been imposed. In that circumstance, I consider that the conceded process error warrants setting aside the sentence and fixing a different one.Considerations on sentencing As the magistrate observed, the fact that the appellant is an Indigenous person does not of itself entitle him to any more favourable treatment than a non‑Indigenous person. To so treat him would offend the principle that all persons are equal before the law. Thus, as the High Court said in Munda v Western Australia (Munda):[13]Mitigating factors must be given appropriate weight, but they must not be allowed “to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence”. It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.(Footnotes omitted)[13] (2013) 249 CLR 600 at [53] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ). Nevertheless, as the High Court put in Bugmy v The Queen[14] which was decided at the same time as Munda:[15]The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.(Footnote omitted)[14] (2013) 249 CLR 571 at [43]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).[15] Munda v Western Australia (2013) 249 CLR 600.