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R v Allen

R v Allen

Case [1999] SASC 346 16 August 1999

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ALLEN v R

[1999] SASC 346

Court of Criminal Appeal: Millhouse, Duggan and Lander JJ (ex tempore)

MILLHOUSE J: In my view, the appeal should be dismissed. I accept the Crown's submission that, while the sentence is severe, it is within the appropriate bracket. Having fixed the penalty, the learned sentencing judge then suspended the term of imprisonment.
The appellant got himself into the situation which allowed him to be falsely accused of being armed. If he hadn't come into the supermarket to steal, then that couldn't have happened. He was able to take an amount of money which may have been as much as $9,000, at least $5,500, to support a heroin habit. He already had a record of offending.
The learned sentencing judge's approach was justified, although it is regrettable that, in his remarks, he did not say how much he deducted from the sentence for a plea of guilty. It is desirable that that should always be mentioned.
There is not much point in my going on, as I think I am in the minority.
DUGGAN J: The appellant, who appeals against sentence, pleaded guilty to the offence of larceny. He was charged originally with armed robbery, but the prosecution accepted the plea of guilty to the lesser offence as an answer to the indictment. It was also conceded by the prosecution that the appellant should be sentenced on the basis of the facts asserted by him during his interview with the police.
Ms Barnett, who appears for the prosecution, conceded that the original allegations which led to the charging of the offence of armed robbery were false. According to the version given by the appellant to the police, he went to a supermarket at Glandore on 19 June 1998 at approximately 11.15 am. He went to the supermarket for the purpose of stealing money. The appellant said that he entered a back room and opened the top drawer of a desk. There was a bank bag in the drawer which he took before leaving the premises. There was some doubt as to the amount of money taken, but according to the information provided to the learned sentencing judge, an amount between $5,500 and $9,000 was involved. No doubt this range was presented to the learned sentencing judge because the prosecution was unwilling to place too much reliance on the evidence of the victim.
I think it would have been appropriate in the circumstances to proceed on the basis that the amount stolen was that claimed by the appellant, and Ms Barnett has quite properly conceded that this was the appropriate sentencing basis. Approximately $4,000 was recovered from the appellant's home, and a further $1,700 was used by the appellant to redeem items from a pawnbroker.
The appellant was detained in custody for a period of three months immediately after his arrest, and this was taken into account when fixing the sentence. The learned sentencing judge sentenced the appellant to imprisonment for 18 months, with a…

Grounds of appeal

[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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Details

AGLC: R v Allen [1999] SASC 346
Case: [1999] SASC 346
Decision Date: 16 August 1999

CaseChat Overview and Summary

The case of R v Allen involved an appeal against the sentence imposed on the appellant, who had pleaded guilty to the lesser offence of larceny. The original charge was for armed robbery, but the prosecution accepted the plea to the lesser offence. The appeal focused on whether the sentence was manifestly excessive. The court heard arguments about the impact of the appellant's early offer of a plea of guilty, the time spent in custody, and the stringent bail conditions imposed due to the false armed robbery charge. The appellant had stolen between $5,500 and $9,000 to support a heroin habit, and had a prior criminal record.

The legal issues before the Court of Criminal Appeal were whether the sentence imposed was manifestly excessive, and whether the sentencing judge adequately considered the appellant's admissions, early plea of guilty, time spent in custody, and the stringent bail conditions. The court needed to determine the appropriate head sentence and non-parole period for the offence, and whether it was appropriate to suspend the sentence. The appeal court was required to consider the same factors as the sentencing judge.

The court found that while the appellant's early offer of a plea of guilty, time spent in custody, and stringent bail conditions were relevant factors, they did not warrant a full reduction in the sentence. However, the court agreed that the original sentence of 18 months imprisonment with a non-parole period of 12 months was manifestly excessive. The court allowed the appeal and reduced the term of imprisonment to 12 months and the non-parole period to 9 months. The court also considered the other sentencing conditions, such as the bond and community service, and found them to be appropriate.

The final orders of the court were to allow the appeal solely for the purpose of reducing the term of imprisonment from 18 months to 12 months and the non-parole period from 12 months to 9 months. The court emphasised the importance of sentencing judges indicating the extent of the reduction in sentence by reason of an early plea of guilty, to provide an accurate understanding of the manner in which the sentence was constructed.

Orders