R v ANDERSON - [2008] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ANDERSON
[2008] SASC 106
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Vanstone)
23 April 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Appellant appealed against sentences imposed on him in the District Court after pleas of guilty to various dishonesty offences - sentences made cumulative - total head sentence of imprisonment for nine years and six months with a non-parole period of imprisonment for five years - sentencing judge stated that he had considered the principle of totality and taken it into account - whether total head sentence and non-parole period manifestly excessive - whether the judge failed to take into account each of the pleas of guilty - whether sufficient effect given to the principle of totality.
Held: The sentencing judge's comments suggest that allowance was made for the pleas - when considered individually, none of the sentences were manifestly excessive - the circumstances justify the application of the totality principle - doubt whether all considerations relevant to the totality principle were taken into account - appeal allowed - substituted total head sentence of imprisonment for seven years and non-parole period of imprisonment for four years.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Place (2002) 81 SASR 395; R v Rossi (1988) 142 LSJS 451; Herbert v The Queen (2003) 27 WAR 330; R v Bennett [2005] SASC 55, discussed.

R v ANDERSON
[2008] SASC 106
Court of Criminal Appeal: Doyle CJ, Duggan and Vanstone JJ

DOYLE CJ: I would allow the appeal. I agree with the orders proposed by Duggan J. I agree with his reasons. There is nothing that I wish to add.
DUGGAN J. The appellant has appealed against sentences imposed on him in the District Court.
The District Court information alleged that the appellant and an accomplice committed the offences of serious criminal trespass in a non-residential building, attempted theft and theft. The theft took place on 14 September 2006 when the appellant and his accomplice stole a utility. Then, on 3 November 2006, the appellant and his accomplice used the vehicle in an attempt to steal an automatic teller machine which contained approximately $35,000. The vehicle was reversed through the doors of the restaurant and gaming room of the St Francis Winery at Old Reynella. A chain fixed to the utility was attached to the teller machine in an attempt to dislodge it. The attempt was unsuccessful and it was abandoned. The appellant pleaded guilty to these offences.
When the appellant was dealt with in relation to the above offences, he requested that various matters pending in the Magistrates Court be brought up to the District Court so that he could be sentenced on them. He pleaded guilty to these charges, which consisted of a number of receiving offences and…

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.

Continue reading R v ANDERSON

Details

AGLC: R v ANDERSON [2008] SASC 106
Case: [2008] SASC 106
Decision Date: 23 April 2008

CaseChat Overview and Summary

The appellant in this case, Anderson, appealed against the sentences imposed on him by the District Court following his guilty pleas to various dishonesty offences. The sentences were made cumulative, resulting in a total head sentence of imprisonment for nine years and six months, with a non-parole period of imprisonment for five years. Anderson argued that the total head sentence and the non-parole period were manifestly excessive and that the sentencing judge failed to take into account each of his pleas of guilty and the principle of totality.

The court needed to determine whether the total head sentence and non-parole period were manifestly excessive and if the judge had failed to consider each of the pleas of guilty and the principle of totality. The court examined the sentencing judge’s comments and found that they suggested allowance was made for the pleas. Each sentence, when considered individually, was not manifestly excessive. The circumstances justified the application of the totality principle. However, the court had some doubt as to whether all considerations relevant to the principle of totality were taken into account.

The appeal was allowed, and the sentences were substituted with a total head sentence of imprisonment for seven years and a non-parole period of imprisonment for four years. This decision highlights the importance of considering all relevant factors in sentencing, including the principle of totality and individual pleas of guilty.

Orders