R v BERGMAN - [2007] SASC 31

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BERGMAN
[2007] SASC 31
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Layton)
6 February 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence - appellant pleaded guilty on the morning of trial to aggravated serious criminal trespass in a place of residence; causing grievous bodily harm with intent to cause grievous bodily harm; and common assault - sentenced to eight years imprisonment with a non-parole period of five years - whether sentence manifestly excessive - Held: sentence within the appropriate range for such offending - sentence not manifestly excessive - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 10(2) and s 18A; Criminal Law Consolidation Act 1935 s 170(2), referred to.
R v Paterson (2001) 214 LSJS 353; R v Humby [2004] SASC 358; R v Siozios [2004] SASC 299, considered.

R v BERGMAN
[2007] SASC 31
Court of Criminal Appeal: Doyle CJ, Debelle and Layton JJ

DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons given by Layton J for so deciding. I agree also with the reasons given by Debelle J.
DEBELLE J: The appellant’s offending was particularly serious. It first involved an aggravated serious criminal trespass to a residence. The appellant and four others broke open the front door of a residence which they knew was occupied by two others. There were also two children in the house at the time. The appellant and his co-offenders then entered the house and violently assaulted the two adults. The appellant also committed the offences of causing grievous bodily harm with intent to cause grievous bodily harm and a common assault. The appellant and another assailant were each armed with an aluminium baseball bat which they used to attack a man about his torso and arms. It caused him to suffer a broken left forearm, broken hands, severe bruising and cuts. The offending was planned. The appellant and the others had decided to take the law into their own hands.
I agree with the sentencing Judge’s description of the offending as “an extremely serious group of offences, very nasty and very vicious”. I agree also with his observation that the first two offences are towards the upper end of seriousness for offences of this type. It was offending which called for a severe sentence. In that respect, it is relevant to note that the penalty for each of the first two offences is a period of life imprisonment.
The appellant has a poor record. That fact, and the serious nature of the offending required that the sentence act as a personal deterrent to the appellant. The prevalence of this kind of offending required that it also be a deterrent to others minded to offend…

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 BERGMAN

Details

AGLC: R v BERGMAN [2007] SASC 31
Case: [2007] SASC 31
Decision Date: 6 February 2007

CaseChat Overview and Summary

The appellant, Bergman, appealed against the sentence imposed by the Court of Criminal Appeal following his guilty plea to multiple charges, including aggravated serious criminal trespass, causing grievous bodily harm with intent, and common assault. Bergman was sentenced to eight years imprisonment with a non-parole period of five years. The central issue before the court was whether the sentence was manifestly excessive, given the nature and circumstances of the offences.

The court reviewed the sentencing principles applicable to the offences committed and assessed the sentence imposed in light of the relevant case law. The court considered the seriousness of the offences, Bergman's criminal history, and the need for denunciation and deterrence. After careful deliberation, the court found that the sentence fell within the appropriate range for such offences and was not manifestly excessive. The court emphasised the gravity of Bergman's actions, particularly the aggravated serious criminal trespass and the intent behind the grievous bodily harm.

Bergman's appeal was dismissed, and the original sentence was upheld. The court held that the sentence was neither manifestly excessive nor inappropriate in the circumstances, affirming the trial judge's discretion and the balance struck between the various sentencing considerations.

Orders