R v Ballam - [2016] SASCFC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BALLAM
[2016] SASCFC 110
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Lovell)
27 September 2016
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MAXIMUM SENTENCE
The appellant originally pleaded not guilty to the charge of attempted aggravated serious criminal trespass in a place of residence and guilty to the charge of theft. At trial, the Information was amended by deleting the circumstance of aggravation and replacing it with a difference aggravating circumstance. The appellant pleaded guilty to the amended charge and charge of theft. The sentencing Judge allowed a reduction of 10 per cent on account of the appellant's pleas of guilty.
The sentencing Judge applied the incorrect maximum penalty - the sentencing Judge failed to identify maximum discount available. Whether the charge to which the appellant pleaded was the "relevant offence" for the purposes of s 10C(2) of the Criminal Law (Sentencing) Act 1988 (SA). Whether the sentencing Judge erred in failing to allow up to 40 per cent discount for a plea of guilty to the amended charge.
Held: per Lovell J dismissing the appeal (Kelly and Peek JJ agreeing)
1. The amended charge was the "relevant offence" for the purpose of s 10C. Therefore the appellant was entitled to a discount of up to 40 per cent.
2. Applying s 10C(4)(b) and (c) of the Criminal Law (Sentencing) Act 1988 (SA) a 20 per cent discount for the guilty plea was appropriate.
3. On a resentence the same sentence is imposed.
4. Appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 18A; Criminal Law Consolidation Act 1935 (SA) s 5AA, s 137(1), referred to.
R v Delphin (2001) 79 SASR 429; R v Dwyer (2015) 121 SASR 587; R v Hazeltine [1967] 2 QB 857; R v Schloithe [2016] SASCFC 13; R v W [2015] SASCFC 86, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"relevant offence", "aggravation"

R v BALLAM
[2016] SASCFC 110
Court of Criminal Appeal: Kelly, Peek and Lovell JJ
KELLY J:

I would dismiss the appeal for the reasons given by Lovell J.
PEEK J:
I would dismiss the appeal. I agree with the reasons of Lovell J.
LOVELL J:
Overview
The appellant originally pleaded not guilty to a charge of attempted aggravated serious criminal trespass in a place of residence. On the second day of trial the prosecution, by consent, amended the charge by deleting the circumstance of aggravation alleged and replacing it with another. The appellant then changed his plea to one of guilty to the amended charge. The issue raised on appeal is whether the late amendment followed by the plea of guilty entitled the appellant to a discount on sentence, pursuant to section 10C of the Criminal Law Sentencing Act 1988 (“the Act”), of up to 40 per cent. Did the amendment change the charge in such a way that the amended charge now became the “relevant offence” for the purpose of section 10C?
When sentencing the Judge failed to identify the maximum discount available to the appellant for the pleas of guilty. Further the Judge erroneously referred to the maximum penalty for the offence of attempted aggravated serious criminal trespass in a place of residence as 20 years imprisonment: as it was an attempted offence the maximum penalty was 12 years imprisonment.
The respondent conceded on appeal that errors made by the Judge when sentencing the appellant were material. This was an appropriate concession. The respondent, without conceding that a different sentence should be imposed, accepted that the discretion to resentence was enlivened.
Background to the offending
On 14 August 2013 the appellant was arrested and charged with one count of attempted aggravated serious criminal trespass in a place of residence (count 1) and one count of theft (count 2). It was alleged that, while in company with his partner Ms Annand, he tried to break into a neighbour’s house. This was after he had stolen some packages of frozen meat from a freezer on the back verandah of the neighbour’s house. He was arrested at the scene.
When interviewed by police he admitted to the theft but denied trying to break into the house. His partner and alleged co-offender, Ms Annand, was arrested the following day and they were jointly charged.
Procedural background
On 14 February 2014 the appellant and the co-accused were committed for trial; they were arraigned in the District Court on 17 March 2014. Prior to the arraignment the appellant’s solicitor wrote to the DPP in the following terms:
We advise that both Ballam and Annand entered not guilty pleas to both charges. This was an error with respect to Mr Ballam. Mr Ballam should have entered a plea of guilty to his summary offence of Theft. He will do so at Arraignment.
Please note that Mr Ballam will accordingly be pleading guilty to that charge and it is consistent with his instructions that we have previously advised and that is that he accepts that he was unlawfully on premises and committed the offence of theft. He denies that he attempted to gain entry to the residence or the freezer was (sic) outside.
(My emphasis)
Consistent with the terms of the letter the appellant, when arraigned pleaded not guilty to count 1, namely attempted aggravated serious criminal trespass in a place of residence but guilty to count 2, namely theft. The plea of not guilty to count 1, taken in conjunction with the letter to the DPP, indicates that the appellant at that stage, denied all elements of that offence.
The Record of Proceedings for 17 March 2014 notes the above, but also records that the plea to count 2 “was not accepted by the Prosecutor”.[1] That could only be a reference to the prosecution not accepting the plea to count 2 in full satisfaction of the information. I do not interpret the Record of Proceedings as indicating that the prosecution, as it was not entitled to do, rejecting the actual plea to count 2. I note no Allocutus was given on count 2 on that date and both counts were remanded to a directions hearing to determine a trial date
[1] Appeal Book p 21.
A special directions hearing was held on 9 July 2014. The matter did not resolve and was listed for trial commencing on 12 May 2015. The trial did not proceed on that day and it was then relisted for trial commencing on 29 October 2015. At a call-over of pending trials held on 25 September 2015, the prosecutor stated to the presiding Judge that;
there was an offer put by counsel for Ballam sometime close to the listing of the last trial for an offer to plead to count 1 if we were to drop the charges against Annand, however we weren’t prepared to do that at that stage given there were eyewitnesses that viewed her at the scene.
The trial was due to commence on 29 October 2015 but before a jury was empanelled there was some legal argument and also discussion about a possible resolution of the matter. On the following day count 1 was amended by removing the circumstance of aggravation alleging that the appellant acted in company with Julieann Annand and replacing it with a circumstance of aggravation that alleged that the appellant was “reckless” as to whether anyone was present in the residence. Count 2 was amended simply to remove the name of Ms Annand. The appellant was arraigned on both counts and pleaded guilty to both counts. It was part of the resolution of the matters that both the appellant and Ms Annand agree to and sign an Intervention Order.
It was not necessary for the appellant to plead guilty again to count 2. He had entered his plea at an earlier time. The amendment to count 2 certainly did not change the nature of the charge. The fact of the earlier plea to count 2 appears to have escaped the attention of both counsel and the Judge. The earlier plea of course affected the discount to be applied pursuant to section 10C of the Act.
During the course of sentencing submissions the issue as to the appropriate discount for the plea was raised by counsel who contended that the “relevant offence” for the purpose of section 10C of the Act was the amended charge. Thus it was submitted that the appellant was entitled to up to 40 per cent discount for his “early plea”. When sentencing the Judge allowed only a 10 per cent discount for the pleas. He made no reference in his sentencing remarks as to how he resolved the issue of the applicable discount.
There was no ground of appeal relating to whether the head sentence and non-parole period were manifestly excessive. The only appeal ground was whether the sentencing Judge erred in failing to allow a 40 per cent discount for a plea of guilty to both charges on the amended Information. The final sentence imposed by the sentencing Judge was imprisonment for two years and three months with a non-parole period of 12 months.
By applying the same discount to both offences the Judge appears to have overlooked the earlier plea to count 2. The Judge also applied the incorrect maximum penalty to count 1.
Legal issues
As discussed, the respondent conceded that the errors made by the Judge were material and enlivened the discretion to resentence. On resentence it is necessary to consider the applicable discount the appellant should receive for his pleas of guilty.
The issue that arises is the application of section 10C(2) of the Act to the amended Information and whether or not the charge to which the appellant eventually pleaded was the “relevant offence” for the purposes of the section.
Section 10C(2) of the Act states:
(2)If a defendant has pleaded guilty to an offence or offences—
(a)not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b)more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c)during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending 12 weeks after the first date fixed for the arraignment of the defendant (other than in the circumstances referred to in paragraph (d))—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;
(d)during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(e) within 7 days immediately following—
(i)an unsuccessful application by or on behalf of the defendant to quash or stay the proceedings; or
(ii)a ruling adverse to the interests of the defendant in the course of a hearing of the proceedings,
determined during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending not less than 5 weeks before the commencement of the trial—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;
(f)in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
The section prescribes the maximum discount applicable for a guilty plea and such discount is dependent on the stage of the proceedings when the plea is entered. The Act refers to “the relevant offence”. If the relevant offence was as originally charged then the appellant was entitled only to a maximum discount of 10 per cent. If the amended charge was the relevant offence the appellant would be entitled to a maximum of up to 40 per cent.
Thus the question arises in relation to count 1 on the Information as to what was the “relevant offence” given the late amendment to the circumstances of aggravation. In other words, did replacing the circumstance of aggravation change the offence so that it became the “relevant offence” for the application of section 10C(2). When looking at this question it is necessary to consider section 5AA of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). Section 5AA(1) supplies the circumstances of aggravation. Further section 5AA of the CLCA states:
(3)If a person is charged with an aggravated offence, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.
(4)If a jury finds a person guilty of an aggravated offence, and 2 or more aggravating factors are alleged in the instrument of charge, the jury must state which of the aggravating factors if finds to have been established (but a failure to comply with this subsection does not affect the validity of the jury’s verdict).
Thus subsection (3) requires the circumstances of the aggravation to be stated in the charge. Pursuant to subsection (4) if two circumstances of aggravation are alleged the jury must be asked which of the aggravating factors it finds to have been established.
In R v W[2] the Court held that if the defendant has admitted a circumstance of aggravation prescribed by section 5AA of the CLCA a dispute as to the existence of any other circumstance of aggravation must be determined by the Judge in the sentencing proceedings. If a defendant has not admitted any of the pleaded circumstances of aggravation the existence or otherwise of the pleaded circumstances must be determined by the jury.
[2] [2015] SASCFC 86.
Thus the circumstance of aggravation must be stated in the charge and if not admitted (assuming only one circumstance) it is a question for a jury to decide – that is the plea before the jury must be not guilty.
“Relevant offence”
There is some tension between the decisions of this Court in R v Dwyer[3] and R v Schloithe[4] as to the approach to be taken when considering the effect of an amendment to the Information. The question arises as to whether a circumstance of aggravation forms part of the “relevant offence” for the purposes of section 10C of the Act. Is a circumstance of aggravation a material particular?
[3] (2015) 121 SASR 587.
[4] [2016] SASCFC 13.
In Schloithe[5] the defendant pleaded guilty to 53 offences. The question arose on appeal as to the appropriate discount as the DPP had filed a number of Informations each which reflected amendments to the charges. The plurality held that the act of filing a new Information of itself did not mean that the calculation of time for the purposes of section 10C(2) of the Act started afresh. They noted that the defendant was only entitled to a greater discount in relation to those offences which had been added or for which the material particulars were amended.
[5] [2016] SASCFC 13.
As Gray J noted with whom Kelly J agreed:
The material particulars of the offence to which the defendant had pleaded guilty changed. The defendant entered pleas of guilty to the amended counts on the same day that the counts were amended. The Director conceded that the relevant offence for the purposes of section 10C(2) of the Sentencing Act had changed. The defendant first appeared on the amended third Information on the day of amendment, 26 June 2016. Consequently, he was entitled to the full 40 per cent discount.[6]
[6] R v Schloithe [2016] SASCFC 13 [26].
In R v Dwyer[7] the defendant was charged with four counts of aggravated robbery and there were two circumstances of aggravation alleged in relation to each count. Prior to his plea of guilty one of the two circumstances of aggravation was removed in relation to each offence by amendment to the Information. The Court considered that the amendment, by removing a circumstance of aggravation, did not alter the fact that the relevant offence was the one with which the defendant was originally charged.
[7] (2015) 121 SASR 587.
Stanley J (with whom Kourakis CJ and Gray J agreed) said the following:[8]
Notwithstanding that the Information was subsequently amended on 26 June 2014 to delete one of the allegations of aggravating circumstances, I consider that the “relevant offence” for the purposes of section 10C(2)(a) of the Sentencing Act was the offence of committing robbery by using force or threatening to use force contrary to section 137(1) of the Criminal Law Consolidation Act in circumstances of aggravation. It was always open to the appellant to plead guilty to that offence as originally charged while disputing the circumstances of aggravation. While the particulars of the aggravating circumstances were subsequently amended, the actual offence charged was always the same offence to which the appellant ultimately pleaded guilty on 26 June 2014.
[8] R v Dwyer (2015) 121 SASR 587 [29].
It appears from these remarks that the Court considered that when the defendant pleaded guilty, the “relevant offence”, for the purposes of section 10C of the Act was the offence of robbery contrary to section 137(1) of the CLCA in circumstances of aggravation. The change to the circumstances of aggravation did not change the “relevant offence” for the purposes of section 10C.
The facts in this matter differ from those in R v Dwyer.[9] In Dwyer[10] two circumstances of aggravation were pleaded. The Information was amended by deleting one but one always remained. In this case only one circumstance of aggravation was pleaded; by consent it was deleted and replaced by a different circumstance of aggravation.
[9] (2015) 121 SASR 587.
[10] (2015) 121 SASR 587.
Consistent with section 5AA(3) and (4) and the decision in R v W,[11] the plurality in Dwyer[12] noted that the appellant, on arraignment, could have pleaded guilty as charged but disputed one of the two circumstances of aggravation. Where one of the two pleaded circumstances of aggravation is disputed the sentencing Judge, not the jury, determines the issue. Whilst not strictly necessary for the ultimate decision, Stanley J (with whom Kourakis CJ and Gray J agreed) categorised the “relevant offence” as “committing robbery by using force or threatening to use force contrary to section 137(1) of the CLCA in circumstances of aggravation".
[11] [2015] SASCFC 86.
[12] (2015) 121 SASR 587.
By analogy the question arises here as to whether the appellant, when initially arraigned, could have pleaded guilty to an offence of “attempted aggravated serious criminal trespass in a place of residence in circumstances of aggravation” and still dispute the circumstance of aggravation alleged. If so, then the “relevant offence” always remained that which was originally charged and not the subsequently amended charge. The answer to the question posed, in my view, is clearly no.
Where there is only one circumstance of aggravation alleged, and that is disputed, when arraigned an accused would have to plead not guilty as charged. The jury must determine, in those circumstances, whether the circumstance of aggravation has been proved beyond a reasonable doubt. Only one plea is available to a defendant.
The case of R v Hazeltine[13] is instructive in this regard. The facts were unusual.
[13] [1967] 2 QB 857.

The accused was charged with wounding with intent to do grievous bodily harm. In the presence of the jury he pleaded not guilty to that charge but guilty to the lesser charge of unlawful wounding. The plea to the lesser charge was not accepted by the prosecution in answer to the charge. Thus the case proceeded as one of not guilty to the charge of wounding with intent to do grievous bodily harm. When the accused gave evidence he alleged he was acting in self-defence. This was, on the facts of the case, inconsistent with his earlier indication that he would plead guilty to unlawful wounding. Surprisingly during his cross-examination of the accused, the prosecutor asked no questions at all about his earlier acknowledgment of guilt to the lesser offence.
When summing-up to the jury the trial Judge initially gave clear directions to the jury that they could find the accused not guilty of anything, guilty of wounding with intent or if satisfied beyond a reasonable doubt that he was guilty of unlawful wounding, but not satisfied about the intent, then they could still find him guilty of unlawful wounding. However towards the end of the summing-up the Judge told the jury that since the accused had pleaded guilty to unlawful wounding they did not need to consider the matter further. The jury returned a simple verdict of not guilty. They were not asked whether they found the accused not guilty of unlawful wounding and certainly did not do so.
Despite the verdict of not guilty to the charge the Judge proceeded to sentence the accused on the charge of unlawful wounding believing that his earlier acknowledgment of guilt was a valid plea. Unsurprisingly the accused appealed and the appeal was upheld. The Court held that there cannot be more than one effective plea to a particular charge. Whilst the acknowledgement of guilt to the elements of the lesser charge may have been used during cross-examination of the accused, the only relevant plea was one of not guilty to the charge.
Salmon LJ who gave the judgment for the Court said relevantly:[14]
This court has no doubt but that section 39(1) of the Act of 1914 was introduced so as to remove this anomaly which resulted in the great waste of time and money to which I have referred. In the view of this court, however, that statutory provision did not get rid of the rule that there can be but one plea to one count should the trial proceed on that count. Accordingly if an accused pleads not guilty to wounding with intent but guilty to unlawful wounding and counsel for the prosecution or the judge takes the view that that plea ought not to be accepted and the trial proceeds, the plea of guilty to unlawful wounding is deemed to be withdrawn and the only plea is the plea of not guilty to wounding with intent. It is then for the jury to consider the evidence and at the end of the case to say either quite simply that the man is not guilty or that he is guilty of wounding with intent or that he is not guilty of wounding with intent but guilty to unlawful wounding.
…
Unfortunately in this particular case the plea which he had offered of guilty to unlawful wounding, as a plea, was a nullity. Therefore the jury having found him not guilty, he should have been allowed to go. It is an unfortunate result because this appellant has clearly no shred of merit.
The conclusion, however, is inescapable, that there cannot be more than one effective plea to any count in respect of which an accused is put in charge of the jury. The only effective plea here was a plea of not guilty.
(My emphasis)
[14] [1967] 2 QB 857, 861-862.
This principle was accepted by the Court in R v Zampogna.[15] Thus where an accused pleads guilty to a lesser offence but the plea is not accepted by the prosecution, the plea is deemed to have been withdrawn; the fact of the plea may be used as evidence of an admission of those matters admitted.
[15] (2003) 85 SASR 56
Consistent with R v Hazeltine[16] when arraigned, the appellant, if disputing the circumstance of aggravation could only enter one plea - that is not guilty to the charge. It is correct to observe that perhaps he could say, at the time of arraignment, not guilty to the charge but guilty to the charge of attempted serious criminal trespass in a place of residence thereby disputing the circumstance of aggravation. However if the prosecution did not accept that plea in full satisfaction of the charge the actual plea would be one of not guilty to the charge. His acknowledgement of guilt to the basic offence has been withdrawn; it has no effect on his actual plea. Had a jury been empanelled at that stage, without amendment to the circumstance of aggravation, it could have returned a verdict of not guilty of the charge, guilty of attempted serious criminal trespass in a place of residence (the circumstance of aggravation not proved) or guilty of attempted aggravated serious criminal trespass in a place of residence (in the circumstance of aggravation as originally alleged). The jury could not have found him guilty of a general offence of attempted serious criminal trespass in a place of residence in circumstances of aggravation (not specified). Such a general offence does not exist. The specific circumstance or circumstances of aggravation must always be alleged in the Information. Nor could they find the replacement circumstance of aggravation proved without the amendment being made.
[16] [1967] 2 QB 857.
Thus, the first opportunity the appellant had to plead guilty to the charge that alleged a different circumstance of aggravation was after the amendment was made.
In those circumstances, in my view, the appellant in this matter could only have pleaded guilty to the “relevant offence” for the purpose of section 10C once the amendment was made. He was therefore entitled to have the sentencing Judge consider a discount of up to 40 per cent when approaching sentence in relation to count 1.
I acknowledge that, whilst decided on different facts, there may be tension between my reasoning and that of the Court in R v Dwyer.[17] Dwyer[18] is distinguishable on the facts and strictly speaking the remarks quoted earlier of Stanley J were arguably obiter. Given the wide range of discretions available to a sentencing judge the difference in approach may, in practice, matter little.
[17] (2015) 121 SASR 587.
[18] (2015) 121 SASR 587.
Resentence
At 8:00 pm on 14 August 2013 the occupants, Mr and Mrs Carr, were lying in bed in their home when power was lost. Mr Carr got out of bed and observed two people shinning torches through the windows and doors of the kitchen and dining room. He heard someone say “there is no-one home again tonight.”[19] He observed the appellant try to force the kitchen security door open. Mr Carr then saw the appellant try to access the garage side door by forcing open a lock. This activated the alarm system in the house. Mr Carr turned the alarm off and contacted the police. The appellant then tried to open the window to the bathroom. Prior to the attempted trespass the appellant had stolen some frozen meat that was located inside a fridge on the back verandah of the house. The police arrived and observed a torch light coming from the rear of the north wall of the house. It was there that they located the appellant. A Stanley knife was found at the scene which was later acknowledged by defence counsel as belonging to the appellant. When spoken to by the police the appellant denied the fact that he had committed the offences with Ms Annand. Both the appellant and Ms Annand were known to the victims as neighbours from “down the street”.
[19] Appeal Book p 103.
At the time of sentencing the appellant was 57 years of age. As a young man the appellant had a history of working in the building industry and as a truck driver. In his late twenties he became addicted to drugs and had long periods of unemployment. For a short time he worked as an orderly at the Flinders Medical Centre and then in the cleaning business but has not worked now for many years.
The appellant had a longstanding history of addiction to heroin but has engaged in the methadone program. His engagement was confirmed by DASSA.
The appellant has had a long involvement in criminal activity, in particular dishonesty offences. The Judge set out, during the course of his sentencing remarks, the appellant’s history in that regard. He stated:[20]
Your history of offending commenced in 1976 when you had convictions for larceny. In 1978 you were convicted of the offence of assault with intent to rob and sentenced to 18 months imprisonment, which was suspended. Subsequently you committed offences of unlawful possession, larceny and forgery. In 1991 you were convicted of larceny and sentenced to five months imprisonment, again suspended. You breached the bond that was imposed, and ordered to perform community service. In 1997 you committed larceny and were sentenced to 15 months in prison, again suspended. Later in 1997 you committed an offence of break and enter a building which was dealt with in January 1998 and were sentenced to 12 months imprisonment in relation to that and other offending. Again, that was suspended. In the year 2000 you were given a suspended sentence for driving whilst disqualified.
In 2002 you committed offences which, for reasons which are not clear were not dealt with until 2006. That was an offence of non-aggravated serious criminal trespass in a place of residence and larceny. You were sentenced to a term of imprisonment of 22 months, with a non-parole period of 10 months, which you served.
In 2009 you were dealt with for 2007 offending of trespass in a place of residence, and given a 10 month sentence of imprisonment, which was suspended. In 2010 you committed an offence of theft, for which you were sentenced to 21 days imprisonment, which was suspended, and in –
…
In March 2013 you committed offences of two counts of being unlawfully on premises, two counts of interfering with a motor vehicle without consent, two counts of theft, attempting to deceive another to benefit yourself and unlawful possession, and in March 2014 were sentenced in the Magistrates Court to imprisonment for 12 months, which was, again, suspended.
In addition to the submissions of your counsel I have been provided with a number of documents setting out matters relating to your supervision by correctional services authorities and your health.
You were considered for a treatment intervention program related to other offences, in February 2014. The author of the report noted that you had a provisional diagnosis of bipolar disorder, heroin dependence in partial remission, and a benzodiazepine dependence. No nexus could be established between those conditions and the offending which was being considered, and the author concluded that you were not eligible for the treatment intervention program.
[20] Appeal Book pp 104-105.
Further, as can be seen from the transcript before the sentencing Judge, the issue was not simply an amendment to the circumstances of aggravation. When the appellant had initially pleaded not guilty to count 1 at arraignment he had advised the DPP that he disputed even the basic offence not just the circumstance of aggravation.
When the matter came on for trial on 29 October 2015 his counsel said, “insofar as count 1 is concerned, apart from the aggravating feature we acknowledge that we fall within the requirements of that particular section”.[21]
[21] Appeal Book p 65.
That was the first occasion on which the appellant acknowledged, to the Court, that he was at least guilty of the offence of attempted serious criminal trespass in a place of residence leaving aside the circumstance of aggravation. It may be, as discussed earlier, that such a proposition had been made to the DPP shortly before the trial was due to start in May 2015.
The transcript of submissions before the Judge on 29 October 2015 reveals that the prosecutor, then in charge of the case, was unaware of any earlier offer. The following day a compromise position had been reached and the amendment to the circumstance of aggravation made. The charges against Ms Annand were withdrawn. Both she and the appellant were prepared to enter into an Intervention Order relating to the victims of the crime.
Whilst the appellant is entitled to up to 40 per cent for his plea of guilty in relation to count 1 the Court must consider the operation of s10C(4) of the Act which states:
(4)In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
(a)     whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would shock the public conscience;
(b)     the stage in the proceedings for the offence at which the defendant indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
(c)     the circumstances surrounding the plea;
(d)     in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;
(e)     if the defendant satisfies the court that he or she could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—that fact;
(f)    whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,
and may have regard to any other factor or principle the court thinks relevant.
On the facts of this case in my view the matters referred to in section 10C(4)(b) and (c) are relevant. This was not just a simple change of aggravating circumstances. This was only a late acknowledgement by the appellant either on the day of trial, or perhaps some six months earlier, that he would actually admit the basic offence. Given that the appellant was found at the scene by Police he could have made that admission much earlier. Taking into account those matters I would only allow a discount of 20 per cent for the plea of guilty.
As the appellant pleaded guilty to theft when first arraigned in the District Court he is also entitled to up to 20 per cent discount for that plea.
As the percentage discount applicable for both guilty pleas are the same for both counts I would use section 18A of the Act and would impose one sentence. The appellant’s previous criminal history is significant.
The maximum penalty in relation to count 1 is 12 years imprisonment; for count 2 the maximum is 10 years imprisonment.
The offending was serious and undoubtedly frightening for the victims. The remarks of the Court in R v Delphin[22] remain apposite. For the offence of serious criminal trespass in a place of residence the penalty for a first offence should be in the order of 20-24 months imprisonment with serious consideration given to suspending the sentence. If an offender has committed previous similar offences the penalty may be higher. Here the offence was an attempt and therefore the maximum penalty is lower. However the offending was aggravated as alleged.
[22] (2001) 79 SASR 429.
The theft, the subject of count 2 was not related to count 1, other than it occurred as part of the criminal activity that night. The theft occurred outside of the victim’s house. However substantial concurrency is warranted.
The learned Judge’s sentence in my view could be described as merciful. As discussed earlier the Judge applied the wrong maximum penalty to count 1 when sentencing the appellant.
Applying the correct maximum penalty and after allowing a greater discount for guilty pleas I would not impose a sentence less than that imposed by the sentencing Judge. Indeed there is a reasonable argument that the sentence could be higher. However there was no cross appeal by the DPP.
As I would impose a sentence no different to that of the sentencing Judge I would dismiss the appeal.