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 110Court 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…
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- R v Ballam [2016] SASCFC 110
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- [2016] SASCFC 110
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the proper procedure for accepting pleas, particularly when a prosecutor indicated a plea was "not accepted," and the circumstances under which an indictment could be amended during proceedings. The court also considered the implications of a defendant's partial guilty plea and the subsequent amendment of charges.
The court reasoned that a prosecutor cannot reject a plea of guilty. The notation that the plea to count 2 was "not accepted by the Prosecutor" was interpreted as the prosecution not accepting the plea in full satisfaction of the information, rather than rejecting the plea itself. The court further held that the amendment of the indictment, which altered the particulars of the aggravation on count 1 and removed the co-offender's name from count 2, was permissible. This amendment allowed the appellant to plead guilty to both counts as part of a resolution.
Orders
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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