FRANCOIS JOSEPH GHASSIBE v THE KING [2024] SASCA 78

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE AUXILIARY JUSTICE PEEK) [2023] SASC 141 Applicant: FRANCOIS JOSEPH GHASSIBE Counsel: MR N VADASZ - Solicitor: VADASZ LAWYERS Respondent: THE KING Counsel: MS L DUNLOP WITH MR W SCOBIE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 17/06/2024 File No/s: SCCRM-23-042933 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. GHASSIBE v THE KING [2024] SASCA 78 Judgment of the Court of Appeal (The Honourable Acting Chief Justice Livesey, the Honourable Justice Doyle and the Honourable Justice David) 27 June 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCE Application for permission to appeal against sentence. At around 6.47 pm on 1 April 2022, there was an altercation between the applicant and the deceased, Mr Brian Richardson, following an interaction between the vehicles in which they were travelling. The altercation occurred on West Terrace near the intersection with Currie Street. The culmination to this altercation was that the applicant kicked the deceased in the chin. As a result, the deceased fell backwards and struck his head on the roadway. This led to a brain injury from which he died on 12 April 2022. Following a trial by judge alone, the applicant was found not guilty of murder but guilty of manslaughter, contrary to s 13 of the Criminal Law Consolidation Act 1935 (SA). The sentencing judge imposed a head sentence of six years and nine months, with a non-parole period of four years and six months. The applicant sought permission to appeal his sentence on the ground that his sentence is, in all the circumstances, manifestly excessive. He contended that the sentencing judge should have found good reason to order a partially suspended sentence pursuant to s 96(5) of the Sentencing Act 2017 (SA). Held (the Court) dismissing the application for permission to appeal against sentence: -- 1 of 8 -- 1. Sentencing for the offence of manslaughter produces what may be regarded as the widest range of reasonably available sentencing outcomes. There is no yardstick for offending of this nature. 2. The favourable findings made by the sentencing judge demonstrated that he was anxious to arrive at a sentence which was appropriately proportionate to the circumstances of the offender as well as his offending. 3. The applicant failed to demonstrate that the sentence imposed in this case was other than a just sentence which fell within the range reasonably open to the sentencing judge in the exercise of his broad sentencing discretion. Criminal Law Consolidation Act 1935 (SA) s 13; Sentencing Act 2017 (SA) s 96, referred to. Birch v Fitzgerald (1975) 11 SASR 114; Bugmy v The Queen (2013) 249 CLR 571; Connaire v Austin [1988] TASSC 42; Hackett v The Queen [2021] SASCA 32; Henley v The King [2024] SASCA 52; House v The King (1936) 55 CLR 499; Lee v The State of Western Australia [2022] WASCA 137; R v Blacklidge (Court of Criminal Appeal of New South Wales, Gleeson CJ, 12 December 1995); R v Forbes (2005) 160 A Crim R 1; R v Ghassibe [2023] SASC 141; R v Lavender (2005) 222 CLR 67; R v Spiero (1979) 22 SASR 543; R v Weinman (1987) 49 SASR 248; Saler v Klingbiel [1945] SASR 171; Teagle v The King [2023] SASCA 108; Thrupp v The King [2022] SASCA 97; Webb v O’Sullivan [1952] SASR 65, considered. -- 2 of 8 -- GHASSIBE v THE KING [2024] SASCA 78 Court of Appeal – Criminal: Livesey A/CJ, Doyle and David JJA THE COURT: Introduction 1 This is an application for permission to appeal against sentence. Following a trial before a judge alone, the applicant was found not guilty of murder but guilty of manslaughter, contrary to s 13 of the Criminal Law Consolidation Act 1935 (SA).1 The maximum penalty for manslaughter is life imprisonment. 2 At around 6.47 pm on 1 April 2022, there was an altercation between the applicant and the deceased, Mr Brian Richardson, following an interaction between the vehicles in which they were travelling. The altercation occurred on West Terrace near the intersection with Currie Street. The culmination to this altercation was that the applicant kicked the deceased in the chin. As a result, the deceased fell backwards and struck his head on the roadway. This led to a brain injury from which he died on 12 April 2022. 3 Having found the applicant committed manslaughter by unlawful and dangerous act,2 the judge sentenced the applicant to imprisonment for seven years and six months. This was reduced to six years and nine months on account of the applicant’s guilty plea entered when he was first committed for trial. The sentencing judge found that there were exceptional circumstances justifying a non- parole period of less than four-fifths of the head sentence. The judge fixed the non- parole period at four years and six months. 4 The applicant appeals on the basis that the sentence was manifestly excessive, including because the sentencing judge erred in failing to find that there was good reason to partially suspend the sentence. 5 For the following reasons, it is not reasonably arguable that the sentence was outside the range reasonably open to be imposed. When looked at as a whole, the sentence was neither unreasonable nor plainly unjust.3 The circumstances of the offending 6 The offending followed a traffic incident involving the deceased’s vehicle and the taxi in which the applicant was travelling. The vehicles stopped on West Terrace. After they got out of their vehicles, the deceased attacked the taxi driver. The applicant came to the defence of the taxi driver. 1 R v Ghassibe [2023] SASC 141 (Peek AJ). 2 R v Ghassibe [2023] SASC 141, [131]-[136] (Peek AJ). 3 House v The King (1936) 55 CLR 499. -- 3 of 8 -- [2024] SASCA 78 The Court 2 7 After the applicant intervened, the deceased attacked the applicant. The applicant, who is legally blind in the right eye, was punched in his left eye by the deceased. This caused a temporary interference with the applicant’s vision, together with what the sentencing judge described as interference with the “equilibrium” of the applicant’s “mental state”.4 8 In all, the altercation lasted around 45 seconds. The last 15 seconds were characterised by the applicant removing his shirt, throwing it onto the ground and delivering a flurry of blows to the deceased. By this time the taxi driver was safely back in his taxi. Having effectively subdued the deceased, the applicant then determined to kick the deceased in the head, making what was described as moderate contact with his chin. This deliberate and calculated infliction of violence on a public road occurred when the deceased posed no real threat. 9 At the time of his offending the applicant was under the influence of both alcohol and cocaine. He picked up his shirt before getting back into the taxi. He told the taxi driver to drive off. 10 The altercation was witnessed by the deceased’s wife, brother, and sister-in-law. They remained in the deceased’s vehicle. They also witnessed the initial care and treatment provided to the deceased at the scene. The victim impact statements spoke of the devastating impact of the deceased’s death on the lives of his family and friends. 11 On 1 April 2022, the applicant agreed to accompany senior officers to the Port Adelaide Police Station where he declined legal representation and agreed to various forensic procedures. On 2 April 2022, the applicant gave an interview. 12 On 12 April 2022, following the death of the deceased, police attempted to contact the applicant. Later that day, he presented to the Port Adelaide Police Station where he was arrested and charged with manslaughter. The circumstances of the offender 13 The applicant was 30 at the time of the offending and 32 years at the time of sentence. 14 The sentencing judge was assisted by a report from Mr Balfour, a psychologist, which addressed the applicant’s deprived and dysfunctional upbringing, marked by instability, drug use, and exposure to violence. The applicant had developed a Complex Post Traumatic Stress Disorder. His symptoms included hyperarousal and hypervigilance which, the sentencing judge found, had a “realistic connection” with the offending. 15 The applicant had extensive experience with the criminal justice system but no previous sentence of imprisonment. 4 R v Ghassibe [2023] SASC 141, [86] (Peek AJ). -- 4 of 8 -- [2024] SASCA 78 The Court 3 16 Notwithstanding the difficulties confronting the applicant, he was maintaining a positive relationship with his parents, who continued to support him. He had been in employment since his teenage years and there were positive references speaking to his facility as a worker and to his future prospects of employment. His time in custody had been used to further his qualifications. 17 The applicant has two children and maintained contact with them despite his incarceration. 18 During the course of sentencing submissions, the applicant expressed regret and remorse. He wrote a letter of apology to the deceased’s family. The sentencing remarks 19 The sentencing judge’s remarks outlined with great care the authorities concerning the effects of deprivation and an offender’s mental condition, explaining their application to the case before him. His Honour recognised, as was explained in Bugmy v The Queen,5 that deprivation may result in a range of consequences which “point in different directions in relation to relevant sentencing factors”.6 20 The sentencing judge made a number of findings favourable to the applicant, including the existence of a relevant connection between his mental condition and his offending, and that his deprived upbringing informed his personal circumstances in a way that was mitigatory. Together with the finding of remorse, the sentencing judge held that the applicant was an offender with “reduced moral culpability” for his offending. 21 The sentencing judge explicitly considered partial suspension but rejected it as an inappropriate sentencing option in the circumstances of this case. 22 The applicant does not suggest that the sentencing judge overlooked any material consideration, nor that he took into account any immaterial matters. The proposed grounds of appeal 23 The applicant was given leave to rely on the following amended grounds of appeal: 1. The sentence is, in all the circumstances, manifestly excessive. I. It was not reasonable, in all the circumstances, to sentence on the basis that the applicant was motivated by anger or the wish to retaliate as opposed to fear. II. The learned sentencing judge gave excessive weight to general deterrence given the unique circumstances of this case. 5 Bugmy v The Queen (2013) 249 CLR 571. 6 Teagle v The King [2023] SASCA 108, [52]. -- 5 of 8 -- [2024] SASCA 78 The Court 4 III. The learned sentencing judge gave undue weight to the applicant’s previous criminal history especially the juvenile history in assessing the need for personal deterrence. IV. The issue of deterrence from alcohol or drug-fuelled violence had no or little role to play in circumstances where the applicant did not instigate the violence, his responses were found to be in self-defence and his final, and only unlawful, act took place after repeated attacks by the deceased and was restricted to one blow of moderate force in difficult circumstances. V. The learned sentencing judge gave inadequate weight to remorse, contrition and cooperation in circumstances where the applicant reacted promptly to the police request to present himself, cooperated with police, expressed early concern for the welfare of the deceased, and entered an early guilty plea. 2. The learned sentencing judge erred in not finding good reason to order a partially suspended sentence pursuant to Section 96(5) of the Sentencing Act 2017 (SA). The contentions of the parties 24 The applicant cited the well-known remarks of Napier CJ in Webb v O’Sullivan:7 The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest. 25 The applicant also relied on Connaire v Austin, and the reliance placed on the decision of Richards J in Saler v Klingbiel, for the proposition that his conduct should not be weighed with “golden scales”:8 The determination … involves the making of a judgment which takes into account all the circumstances of the situation in which the appellant found himself. In making that judgment it must be recognised that the circumstances which entitle a person to act in self- defence are not conducive to the making of a cool considered assessment of the amount of force which is appropriate particularly when there has been provocation and that therefore it is unrealistic to weigh such conduct with “golden scales”. 26 The applicant showed video evidence of the altercation to the Court and challenged the finding that his conduct was marked by anger rather than fear. The applicant contended that too much emphasis had been given to deterrence, and inadequate attention was given to his defence of the taxi driver, together with his mitigatory personal circumstances. 27 This was described as an exceptional case where the head sentence, the non- parole period, and the failure to partially suspend under s 96(5) of the Sentencing 7 Webb v O’Sullivan [1952] SASR 65, 66. 8 Connaire v Austin [1988] TASSC 42, [4] (Green CJ) per Richards J in Saler v Klingbiel [1945] SASR 171, 172. The applicant’s submissions refer to the “conduct” as being self-defence. -- 6 of 8 -- [2024] SASCA 78 The Court 5 Act 2017 (SA) revealed that the sentence was, when viewed as a whole, manifestly excessive. 28 The respondent used the video and photographic evidence which had been tendered before the sentencing judge to contend that the blows and kick from the applicant were delivered when the deceased was not attacking him. The respondent contended that the combination of the applicant’s “body language”, and the comments he made to the taxi driver and police soon after the altercation, demonstrated that he was aggressive and angry, not fearful, by the time he had thrown off his shirt and commenced to deliver blows and, ultimately, a kick to the deceased’s chin. The offence of manslaughter – determining permission to appeal sentence 29 When determining an appropriate sentence, or when determining whether a sentence is affected by error, the evaluation of an offender’s moral culpability is as fundamental to the administration of criminal justice as is the evaluation of the degree of harm caused or threatened by the offender.9 Both must be considered and weighed when determining whether the sentence before the Court is materially affected by error. 30 There is nothing in the point that the applicant was fearful rather than angry at the time he delivered his kick. Contrary to the applicant’s contentions, the finding that his kick was delivered in anger was clearly open to the sentencing judge. That finding, and the further finding that the applicant was an offender with “reduced moral culpability”, provide the context for the evaluation of a sentence which was intended to recognise the applicant’s culpability and role in causing the loss of a human life. 31 It is well recognised that sentencing for the offence of manslaughter produces what may be regarded as the widest range of reasonably available sentencing outcomes.10 Indeed, it has been questioned whether an appeal court can establish any intelligible standards for manslaughter offending.11 Though the applicant relied on a detailed schedule of manslaughter sentences handed down over the last 25 years, these tended to demonstrate that there is no yardstick for this kind of offending and that no previous case is of much assistance when evaluating the sentence in this case. 32 The great variety of circumstances and culpability, together with the protean character, of manslaughter offending have been explained and addressed in a number of authorities.12 They were recently reviewed by this Court in Thrupp v 9 R v Spiero (1979) 22 SASR 543, 548-549 (King CJ, with whom Walters and White JJ agreed). 10 R v Lavender (2005) 222 CLR 67, [22]. 11 R v Weinman (1987) 49 SASR 248, 248 (King CJ). 12 R v Blacklidge (Court of Criminal Appeal of New South Wales, Gleeson CJ, 12 December 1995), 2; R v Forbes (2005) 160 A Crim R 1, [133]-[134] (Spigelman CJ). -- 7 of 8 -- [2024] SASCA 78 The Court 6 The King,13 as well as in Henley v The King.14 In the latter case, the Court of Appeal observed that, where manslaughter by an unlawful and dangerous act represents the culmination of a course of conduct, that course of conduct will be relevant to the sentencing exercise even though the defendant is not to be punished for uncharged offending because the offender’s state of mind, and culpability, will be informed by that course of conduct.15 The same may be said about the circumstances of this case. The applicant’s laudable defence of the taxi driver quickly developed into a violent attack which, by the time of the fatal kick, was admitted to be excessive given the absence of any ongoing threat. 33 The offending in this case was characterised by violence and anger, with the kick directed to the deceased’s head. This display of violence in a public place clearly raised the need for the court to take into account the protection of the safety of the community, as well as general and personal deterrence.16 In addition, the applicant’s conduct called for denunciation and punishment. 34 The favourable findings made by the sentencing judge demonstrated that he was anxious to arrive at a sentence which was appropriately proportionate to the circumstances of the offender as well as his offending. In this context, it was nonetheless open to the sentencing judge to take the view that the offending was too serious to permit partial suspension. 35 Indeed, the applicant’s arguments really amounted to criticisms about the weight given to various of the relevant sentencing considerations mentioned by the sentencing judge. At bottom, it was suggested that the sentencing judge should simply have arrived at a different outcome. Arguments about weight do not usually assist an application for permission to appeal against sentence.17 The applicant has not demonstrated that the sentence imposed was other than a just sentence which fell within the range reasonably open to the sentencing judge in the exercise of his broad sentencing discretion.18 Conclusion 36 It is not reasonably arguable that the sentence in this case was manifestly excessive. The application for permission to appeal should be refused. 37 The order of the Court is that the application for permission to appeal against sentence is dismissed. 13 Thrupp v The King [2022] SASCA 97, [24]. 14 Henley v The King [2024] SASCA 52, [69]-[70]. 15 Henley v The King [2024] SASCA 52, [67]-[70]. 16 Birch v Fitzgerald (1975) 11 SASR 114, 116-117. 17 Lee v The State of Western Australia [2022] WASCA 137, [72]-[76]. 18 Hackett v The Queen [2021] SASCA 32, [8]. -- 8 of 8 --