Burke v The Queen

[2019] SASCFC 137

Supreme Court of South Australia

(Court of Criminal Appeal)

BURKE v THE QUEEN

[2019] SASCFC 137

Judgment of The Court of Criminal Appeal (ex tempore)

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

23 July 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE

Appeal against sentence.

The appellant was sentenced for two lots of offending.  For the offences of aggravated serious criminal trespass in a place of residence, theft and damaging property, he received a sentence of one year and five months imprisonment.  For the offences of aggravated possession of a firearm, he was sentenced to one year and five months imprisonment. The sentences were ordered to be served cumulatively and a non-parole period of one year and five months was fixed.  The Judge suspended that sentence upon the appellant entering into a three-year bond.

The appellant breached the bond by committing three offences in April 2018: illegal use of a motor vehicle, unlawfully on premises, theft.  He pleaded guilty and was entitled to a 40 per cent discount on sentence.  The Judge did not find there were any proper grounds to excuse the breach of bond. The suspended sentence was revoked and the appellant was ordered to serve the sentence of two years and 10 months imprisonment. For the fresh offending, the Judge imposed a sentence of one year and 10 months imprisonment to be served cumulatively on the previous sentence, making a total head sentence of four years and eight months imprisonment.  The Judge extended the non-parole period to two years and six months.

The appellant appeals that sentence on the grounds that the Judge erred in failing to apply the mandatory one year licence disqualification for the illegal use of a motor vehicle offence, and erred by treating the existing non-parole period as one year and 10 months, when in fact it was one year and five months.

Held, per David AJ (Kelly and Parker JJ agreeing), granting permission to appeal, allowing the appeal, setting aside the sentence imposed by the sentencing Judge and resentencing the appellant:

1. With respect to the fresh offending, the appellant is sentenced to one year and 10 months imprisonment.

2. That sentence is to be served cumulatively with the sentence of two years and 10 months for the offending the subject of revoked suspended sentence.

3. The total head sentence is four years and eight months imprisonment.

4. The non-parole period of one year and five months is extended to two years and one month.

5. Both the head sentence and the non-parole period are backdated to 12 February 2019.

6. The appellant is disqualified from holding a driver’s licence for a period of 12 months. 

Criminal Law Consolidation Act 1935 (SA); Sentencing Act 2017 (SA), referred to.

BURKE v THE QUEEN
[2019] SASCFC 137

Court of Criminal Appeal:       Kelly and Parker JJ, David AJ

1. KELLY J:             I agree with the orders proposed by David AJ.

2. PARKER J:          I also agree with the orders proposed by David AJ.

3. DAVID AJ:            I would allow the appeal for the reasons that two mistakes have been made by the learned sentencing judge, firstly, in not taking into account the fact that there is to be one years’ licence disqualification for the illegal use and, secondly, by saying that there was an existing non-parole period of one year and 10 months which had to be extended, when it was in fact one year and five months.

4. For that reason, the matter is open for resentencing.

5. I can see no basis, taking into account all of the material that I have seen and that was before the learned judge, for disagreeing with his basic method of sentence, allowing for the one mistake he has made in relation to the non‑parole period.

6. I would therefore sentence accordingly.

7. I would reduce by 40 per cent for the early plea of guilty, the term of imprisonment for the offending and which is the subject of this appeal, and set a period of one year, 10 months’ imprisonment.

8. I order that that sentence be served cumulatively on top of the two years and 10 months, making a total of four years and eight months.

9. The non-parole period of one year and five months will be extended to two years and one month.  I would backdate both the head sentence and the non‑parole period to 12 February 2019.

10. I would order that his licence be suspended for 12 months.