R v Belczacki

Case [2012] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BELCZACKI

[2012] SASCFC 4

Judgment of The Court of Criminal Appeal

(The Honourable Justice David, The Honourable Justice Peek and The Honourable Justice Blue)

18 January 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appellant pleaded guilty to various offences committed over a 9 month period all associated with her drug addiction - offences divided into 4 categories - category 1 comprised offences of serious criminal trespass, theft, property damage and illegal interference with a motor vehicle – sentence of 8 years imprisonment (after credit for guilty pleas) imposed pursuant to s 18A Sentencing Act for the category 1 offending with other sentences of imprisonment for the offences in categories 2 to 4 to run concurrently with the 8 year sentence - non-parole period of 2 years 6 months fixed.

Appeal against severity of the 8 year sentence - whether the sentencing judge failed to consider concurrency or partial concurrency of sentence as between the offences comprising category 1 - whether the sentence was manifestly excessive.

Appeal allowed.

Held: (David J, in dissent):

The appeal should be dismissed - no error in the sentencing process was demonstrated – an omission by the sentencing judge to identify separate notional sentences does not amount to an error of law – the sentence was not manifestly excessive.

Held: (Peek J, Blue J concurring):

The appeal should be allowed. The sentencing Judge erred in failing to consider the matter of partial concurrency - a degree of partial concurrency as between the offences comprising category 1 is required - in any event, the sentence was manifestly excessive.

Upon re-sentencing - notional sentences for each offence considered- partial concurrency implemented reducing the total notional sentence to 8 years - further reduction to 6 years 4 months for guilty pleas - appellant re-sentenced pursuant to s 18A Sentencing Act to 6 years 4 months imprisonment - non-parole period of 2 years 6 months fixed.

Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Major (1998) 70 SASR 488; Pearce v The Queen (1998) 194 CLR 610; R v LLK (2003) 231 LSJS 458; Dicker v Ashton (1974) 65 LSJS 150; R v Dorning (1981) 27 SASR 481; Attorney-General v Tichy (1982) 30 SASR 84; R v Blain (1984) 115 LSJS 270; R v Nixon (1993) 66 A Crim R 83; R v Skrjanc (1994) 71 A Crim R 347; R v Symonds [1999] SASC 217; R v Gale (1999) 74 SASR 235; R v Place (2002) 81 SASR 395; R v Capalbo [2005] SASC 47; R vMcNamara (2009) 105 SASR 38; R v Delphin (2001) 79 SASR 429

Continue reading R v Belczacki

Sign in free to access the full text

Details
AGLC
R v Belczacki [2012] SASCFC 4
Case
[2012] SASCFC 4
Decision Date

CaseChat Overview and Summary

The appellant, R v Belczacki, appealed against the severity of an eight-year imprisonment sentence imposed by the District Court. The appellant had pleaded guilty to a range of offences committed over a nine-month period, all linked to her drug addiction. These offences were categorised into four groups, with the first category encompassing serious criminal trespass, theft, property damage, and illegal interference with a motor vehicle. The sentencing judge imposed an eight-year term for the first category, with sentences for the other categories to run concurrently, and fixed a non-parole period of two years and six months.

The appeal raised two primary legal issues for the court's determination. Firstly, it was questioned whether the sentencing judge had adequately considered the principle of concurrency or partial concurrency of sentences in relation to the offences within the first category. Secondly, the appeal challenged whether the overall eight-year sentence was manifestly excessive given the circumstances.

The appellate court, comprising David, Peek, and Blue JJ, ultimately allowed the appeal. While acknowledging the seriousness of the offending, the court found that the sentencing judge had erred in not sufficiently accounting for the concurrent nature of some of the offences within the first category when determining the head sentence. The court reasoned that a reduction in the head sentence was warranted to reflect this oversight. Consequently, the court set aside the original eight-year sentence and re-sentenced the appellant to an effective term of six years and four months imprisonment, maintaining the non-parole period of two years and six months.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PEEK J (dissent)
As there has been no error demonstrated in the sentence imposed, the question of suspension does not arise.Conclusion I would dismiss the appeal. I would allow the appeal, set aside the sentence of eight years imprisonment imposed by the District Court Judge and re-sentence the appellant to an effective sentence of six years four months imprisonment with a non-parole period of two years six months. Introduction The appellant pleaded guilty to having committed a number of crimes over the period of nine months between 1 June 2010 and 15 February 2011. They comprised four categories of offences and were all, wholly or partly, associated with her drug addiction. I adopt David J’s recital of the facts and add some further detail.The first category of offences: serious criminal trespass and theft offences There were 12 offences in the first category of offences spanning a period of four and a half months from 1 June 2010 to 14 October 2010. Eight of those offences consisted of four pairs of offences (each pair comprising a serious criminal trespass charge plus a theft charge), being the pairs at David J’s first, third, seventh and eighth dot points. The 12 offences in the same order as David J’s dot points were as follows. ·1 June 2010, the place of residence of Ms P at Somerton Park. Pair of offences: aggravated serious criminal trespass plus a theft charge which involved $7,000 worth of property. (This is the only minor indictable charge of theft, with all of the others being summary charges involving substantially lower values, each being averred to be less than the cut-off point of $2,500.)·25 August 2010, one summary charge of theft laid on the basis that the appellant was found selling goods that had previously been stolen from the home of victim H; it was the act of conversion by attempting to sell to a second-hand dealer, and not an act of taking from the house of H (which was not proven against the appellant), that constituted the theft. The value of the goods was not quantified but was averred to be less than $2,500. A further offence of making a false declaration to the second-hand dealer was the subject of a further charge (a fine being the maximum penalty) within category four.·26 August 2010, the place of residence of Mr F at Noarlunga Downs. Pair of offences: serious criminal trespass plus a summary charge of theft. The value of the goods was not quantified, but averred to be less than $2,500.·1 September 2010, a summary charge of theft of petrol of the value of $70.·16 September 2010, the place of residence of Mr C. A summary charge of property damage, the damage was not quantified but was averred to be less than $2,500.·20 September 2010, a summary charge of illegal interference with Ms W’s motor vehicle, no damage and nothing taken. ·30 September 2010, the place of residence of Mr T at Old Reynella. Pair of offences: aggravated serious criminal trespass plus a summary charge of theft, the value of the goods was averred to be less than $2,500. ·14 October 2010, place of residence of Ms W at Seaford. Pair of offences: serious criminal trespass plus a summary charge of theft of two bottles of wine, the value of the goods amount was not quantified, averred to be less than $2,500.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.