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…

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 Ballam

Details

AGLC: R v Ballam [2016] SASCFC 110
Case: [2016] SASCFC 110
Decision Date: 27 September 2016

CaseChat Overview and Summary

The case of *R v Ballam* concerned an appeal by the appellant, Mr Ballam, against his conviction. The dispute arose from charges of attempted aggravated serious criminal trespass and theft. Mr Ballam was jointly charged with a co-offender, Ms Annand, for these offences. The matter was heard in the District Court.

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

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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