Lane v The Queen

Case [2020] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

LANE v THE QUEEN

[2020] SASCFC 82

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Livesey and The Honourable Justice Bleby)

8 September 2020

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Application for permission to appeal against sentence.

The applicant was convicted by a jury of the offence of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA). The offending occurred in 2016 at a service station on Halloween. The applicant, dressed in a costume, threatened the cashier in the service station, taking cash and cigarettes. As he was leaving he showed a machete, not previously visible on him, to a customer as a threat to not block or prevent his escape. This offending took place as one of a series of offences between January 2015 and January 2017.

The applicant was sentenced to eight years' imprisonment to be served cumulatively on an already existing sentence of what the sentencing judge understood to be 12 years, seven months and nine days. The sentencing judge increased the non-parole period from seven to 12 years. The antecedent report on which the sentencing judge relied overstated the sentence which the applicant was serving at the time, by two months.

The applicant appeals on the grounds that:

1. The sentence and non-parole period imposed were manifestly excessive.

2. The sentencing Judge erred in expressly declining to allow for the totality principle when sentencing the applicant who was 21 years of age at the time of the offence.

Held per Bleby J (Kelly and Livesey JJ agreeing), granting an extension of time to appeal, granting permission to appeal and allowing the appeal:

1. In holding that there was no sufficient reason to reduce any part of the sentence on account of the principle of totality, the sentencing judge erred.

2. The principle of totality warranted reduction of the total sentence.

3. The sentence is set aside.

4. A head sentence of eight years’ imprisonment and a non-parole period of five years is imposed.

5. Taking into account the conceded error in the antecedent report, that would create, in total, a head sentence of 20 years, five months and nine days, with a non-parole period of 12 years, commencing on 21 July 2017.

6. Both the head sentence and non-parole period are to be served partially concurrently with the previous total head sentence and non-parole period, respectively, such that the total combined sentence to be served is 16 years, with a relatively low non-parole period of nine years, commencing on 21 July 2017.

Sentencing Act 2017 (SA) s 10, referred to.
Mill v The Queen (1988) 166 CLR 59; Postiglione v The Queen (1997) 189 CLR 295; R v E, AD (2005) 93 SASR 20; R v…

Continue reading Lane v The Queen

Sign in free to access the full text

Details
AGLC
Lane v The Queen [2020] SASCFC 82
Case
[2020] SASCFC 82
Decision Date

CaseChat Overview and Summary

The applicant, Lane, appealed against a sentence imposed by a sentencing judge. The appeal concerned the application of the principle of totality in determining the cumulative sentence for a series of offences committed between January 2015 and January 2017, which included aggravated serious criminal trespass, aggravated robbery, aggravated assault, theft, and property damage. Lane had previously been sentenced for other offences, and the sentencing judge had imposed a head sentence of seven years' imprisonment to be served cumulatively on an existing sentence, resulting in a total aggregate sentence of 14 years, three months, and nine days, reduced by two months for time already served.

The primary legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in failing to adequately apply the principle of totality when imposing the cumulative sentence. Specifically, the court had to determine if the total sentence imposed was manifestly excessive, considering the applicant's prior convictions and the overall period of imprisonment. The court was also required to consider the impact of a conceded error in an antecedent report on the sentencing determination.

The Full Court, per Bleby J, found that the sentencing judge had erred in holding that there was no sufficient reason to reduce any part of the sentence on account of the principle of totality. The court reasoned that the principle of totality warranted a reduction of the total sentence to avoid an unduly harsh outcome. Consequently, the court set aside the original sentence and imposed a new head sentence of eight years' imprisonment with a non-parole period of five years. Taking into account the conceded error in the antecedent report, the court adjusted the total sentence to 20 years, five months, and nine days, with a non-parole period of 12 years, commencing on 21 July 2017. However, the court further ordered that both the head sentence and non-parole period be served partially concurrently with the previous total head sentence and non-parole period, resulting in a total combined sentence of 16 years with a non-parole period of nine years, commencing on 21 July 2017.

Orders

Orders of the court

Held per Bleby J (Kelly and Livesey JJ agreeing), granting an extension of time to appeal, granting permission to appeal and allowing the appeal:

1. In holding that there was no sufficient reason to reduce any part of the sentence on account of the principle of totality, the sentencing judge erred.

2. The principle of totality warranted reduction of the total sentence.

3. The sentence is set aside.

4. A head sentence of eight years’ imprisonment and a non-parole period of five years is imposed.

5. Taking into account the conceded error in the antecedent report, that would create, in total, a head sentence of 20 years, five months and nine days, with a non-parole period of 12 years, commencing on 21 July 2017.

6. Both the head sentence and non-parole period are to be served partially concurrently with the previous total head sentence and non-parole period, respectively, such that the total combined sentence to be served is 16 years, with a relatively low non-parole period of nine years, commencing on 21 July 2017.

Background

Background to the litigation

The applicant’s childhood was characterised by violence and substance abuse on the part of his parents. His mother left the home on account of the violence of his father. Following that, the violence against the applicant escalated. He completed year 10 at school. Prior to his arrest for another offence in 2015, he was working as a gyprocker. He has completed various short course certificates. He commenced using ice at the age of 18 and became addicted.Immediate background of offending This offence took place as one of a series of offences between January 2015 and January 2017. This series comprised incidents of aggravated serious criminal trespass, aggravated robbery, aggravated assault, theft, and property damage. Prior to his sentencing in February 2020, the applicant had been sentenced most recently on 14 March 2019, by Tilmouth DCJ, for the offences of aggravated serious criminal trespass in a place of residence, aggravated causing harm with intent to cause harm, aggravated assault causing harm and aggravated robbery. Those offences had occurred on 16 January 2017. The applicant was found guilty by a jury on 30 October 2018. In the course of sentencing the applicant for those offences, Tilmouth DCJ summarised the course of offending in which the applicant had engaged since 2015 and the sentences that had resulted:[16]You are also before the court for breaching a bond entered into on 8 March 2016 for an aggravated serious criminal trespass. You were sentenced in March 2016 to 10 months imprisonment, suspended on entering into a bond to be of good behaviour for one year and six months. This was preceded by an offence of committing an aggravated offence of theft using force, for which you were sentenced in this court on 6 November 2015 to four years imprisonment with a non-parole period of one year and eight months, suspended on conditions to be of good behaviour for three years.Suspension was revoked by another judge of this court on 26 April 2018 for committing a number of offences, including five assaults and two aggravated assaults. He revoked the previous suspended sentence, partly because most of the breaching offences were committed in mid 2016 only months after you were given the advantage of the second suspended sentence.This resulted in a combined sentence of six years, two months and nine days with a non‑parole period of two years and six months to commence on 21 July 2017. This was increased to six years, five months and nine days with a non-parole period of two years and six months to commence from the same date, for driving in a reckless or dangerous manner, imposed by the Port Adelaide Magistrates Court on 6 August 2018.As the present offences are so serious, the suspended sentence of 10 months imprisonment imposed in March 2016 is revoked and hereby carried into effect.[16] Sentencing Remarks of Judge Tilmouth. Judge Tilmouth determined on that occasion to impose a single penalty of seven years’ imprisonment to be served cumulatively on the six years, five months and nine days to which the applicant had already been sentenced. That resulted in a total aggregate sentence of 14 years, three months and nine days, which was then reduced by two months to account for time that the applicant had already spent in custody.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.