The Director of Public Prosecutions seeks permission to appeal against the sentence imposed upon the respondent for two offences of aggravated theft, two offences of basic theft, and one offence of aggravated robbery, committed in August 2023 while the respondent was subject to a partially suspended sentence bond.
In sentencing the respondent, the sentencing judge used a starting point of imprisonment for 3 years and 6 months for the offence of aggravated robbery.
Focusing upon this starting point, the Director seeks permission to appeal on the ground that the sentence imposed is manifestly inadequate. He contends that the starting point for the aggravated robbery offence represents a significant departure from the standard of 6 to 8 years imprisonment enunciated in R v Place; that the judge did not identify any basis for a significant departure from the standard; and that there was no such basis in the circumstances of this offending or offender.
The respondent accepts that the sentence imposed was manifestly inadequate. However, he opposes permission to appeal on the basis that there is no justification for this Court’s intervention and, in particular, that this is not a ‘rare and exceptional’ case where intervention is justified.
Held (per the Court), granting permission to appeal against sentence, allowing the appeal, setting aside the sentence below and resentencing the respondent:
1.The sentence imposed below was manifestly inadequate as the starting point for the offence of aggravated robbery involved a significant departure from the standard in R v Place and such a departure was not justified in the circumstances of the offending;
2.Properly understood, the phrase ‘rare and exceptional’ is not a test or criterion to be applied or satisfied in a particular case, but rather a compendious reference to, or reflection of, the importance of restraint in exercising the Court’s jurisdiction to entertain Crown appeals against sentence;
3.In weighing considerations of double jeopardy against the public interest in appellate intervention, this is an appropriate case in which to grant the Director permission to appeal;
4.In resentencing the respondent, a starting point of 6 years is appropriate for the aggravated robbery offence, reduced to 4 years and 6 months for his guilty plea;
[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
R v AMETOVIC [2024] SASCA 153
Case
[2024] SASCA 153
Decision Date
CaseChat Overview and Summary
The Crown appealed against the sentence imposed on the respondent, AMETOVIC, by the sentencing judge. The appeal concerned the adequacy of the sentence for property offences, specifically robbery. The matter was heard by S Doyle, Bleby and B Doyle JJ.
The central legal issue before the Full Court was whether the original sentence was manifestly inadequate, particularly the non-parole period, given the respondent's history of offending. The Court was required to determine if interference with the sentencing judge's discretion was warranted.
The Court acknowledged the respondent's concerning history of offending, which limited the scope for leniency. However, it also took into account the respondent's relatively young age and the sentencing judge's assessment of his prospects for rehabilitation. Applying these considerations, the Court allowed the Crown's appeal, set aside the original sentence, and imposed a new sentence of imprisonment for 5 years, 7 months, 1 week, and 5 days. A non-parole period of 3 years and 6 months was fixed, and the sentence was backdated to commence from 6 September 2023.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Turning to the non-parole period, the respondent’s history of offending leaves little room for leniency. However, having regard to the respondent’s relatively young age, and the matters that the sentencing judge considered left room for some guarded optimism as to his prospects for rehabilitation, we would fix a non-parole period of 3 years and 6 months.Conclusion and orders For the reasons set out, we grant permission to appeal, allow the appeal, set aside the sentence below and in lieu thereof sentence the respondent to imprisonment for 5 years, 7 months, 1 week and 5 days, with a non-parole period of 3 years and 6 months. The sentence will be backdated to commence from 6 September 2023.