(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
9 June 2022
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT OR BEING FOUND WITH INTENT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OTHERS
The appellant was found guilty following a trial by jury of four offences arising out of a home invasion in company: one count of aggravated serious criminal trespass, contrary to s 170(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), one count of aggravated assault causing harm, contrary to s 20(4)(c) of the CLCA, one count of aggravated robbery, contrary to s 137 of the CLCA and one count of false imprisonment at common law. The offending involved two victims.
On 1 November 2021, the appellant was sentenced by a judge of the District Court to a single sentence of 10 years’ imprisonment. After allowance for time spent in custody and on home detention bail, the sentence was reduced to nine years and nine months, with a non-parole period of four years fixed.
The appellant sought permission to appeal on the sole ground that the head sentence was manifestly excessive. The appellant contended that head sentence of 10 years’ imprisonment fell outside of the range available to the sentencing judge, emphasising the appellant’s lack of material criminal history and the hardship associated with imprisonment given the appellant’s role as a mother to five children, three of whom are very young.
Held (the Court) granting permission to appeal but dismissing the appeal:
1.Hardship to dependents of a defendant is relevant to the exercise of the sentencing discretion but unlikely to significantly affect the sentence which is imposed unless it is shown to be out of the ordinary or extreme.
2.When the head sentence and non-parole period are considered as part of the sentence as a whole, it cannot be said that the head sentence is unjust or that the exercise of sentencing discretion miscarried.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Adams (a pseudonym) v The Queen [2022] SASCA 47
Case
[2022] SASCA 47
Decision Date
CaseChat Overview and Summary
The appellant, Adams (a pseudonym), appealed against his conviction for burglary and the subsequent sentence imposed by the District Court of New South Wales. The Crown opposed the appeal.
The primary legal issues before the Court of Criminal Appeal of New South Wales were whether the conviction for burglary was unsafe or unsatisfactory, and if not, whether the sentence of five years imprisonment with a non-parole period of three years was manifestly excessive.
The Court considered the evidence presented at trial, which included the appellant's presence at the scene of the burglary and his subsequent actions. It applied the principles of appellate review for convictions, requiring the Crown to prove beyond reasonable doubt that the appellant entered the premises as a trespasser with the intention to commit a serious indictable offence therein. Regarding the sentence, the Court weighed the objective seriousness of the offence, the appellant's criminal history, and the impact of his imprisonment on his family, particularly his young children. The Court affirmed that while hardship to others is a relevant consideration in sentencing, it does not ordinarily displace the need for a sentence that reflects the gravity of the offence and the need for deterrence and punishment.
The Court of Criminal Appeal dismissed the appeal against conviction. However, it allowed the appeal against sentence, reducing the non-parole period to two years and six months, making the effective sentence five years imprisonment with a non-parole period of two years and six months.