R v BESANT - [2013] SADC 104

District Court of South Australia
(Criminal)
R v BESANT
[2013] SADC 104
Ruling of His Honour Judge Slattery (ex tempore)
7 August 2013
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY
Defendant applies for sentencing conference to be convened under s9C Criminal Law (Sentencing) Act - discussion of discretionary considerations under s9C(1) of the Act.
Application granted.
Criminal Law (Sentencing) Act 1988 s6, s9C; Native Title Act 1993 (Cth) Parts 1, 2, 3 and 4 , referred to.
R v Wanganeen [2010] SASC 237, applied.

R v BESANT
[2013] SADC 104

HIS HONOUR: I make the following ruling.
The defendant, a Yalata Aboriginal man, has been committed to this Court from the Port Pirie Magistrates Court for sentence in respect of the following two admitted offences:
1.Commit theft using force (aggravated offence) contrary to s.137(1) of the Criminal Law Consolidation Act 1935;
2.Drive dangerously to cause police pursuit (aggravated offence) contrary to s.19AC(1)(b) of the Criminal Law Consolidation Act 1935.
The defendant was on 15 day of December 2012 employed at Roxby Downs on a fly-in fly-out basis. It was highly paid employment. On that day and for reasons that are unstated, he anticipated and thought that he could not face domestic difficulties when he went home. He met a friend and they went to a local Hotel. They drank some alcohol. Later he injected three times with “crystal meth”. He has no memory from that time.
The defendant then drove a stolen car on the highway. It ran out of fuel and it stopped on the verge of the highway.
Mr Henry Morton, a man above 60 years of age, also travelling along the highway, stopped to render assistance to the defendant. Mr Morton was forced by the defendant to give up his car. The defendant left Mr Morton on the side of the road and then travelled on in that car to Crystal Brook where he was apprehended after a police chase. Mr Morton’s car was severely damaged in the process and the defendant was injured in the events at the end of the car chase.
The defendant says that he still has no recall of events after the third injection of “crystal meth” because of the effect of those drugs; he injected a very large amount of the drug.
The defendant is 24 years of age. He is married with three children and a fourth child is due. As a result of these events, he has lost the very good job that he had at Roxby Downs.
The defendant informs me through his counsel that he is deeply ashamed of his actions that have had such a catastrophic effect on his life; he is deeply apologetic and he wishes to communicate that remorse to Mr Henry Morton.
In that background, the defendant has asked that in respect of his plea and sentencing, the Court considers the operation of s.9C of the Criminal Law (Sentencing) Act 1988 (

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 BESANT

Details

AGLC: R v BESANT [2013] SADC 104
Case: [2013] SADC 104
Decision Date: 7 August 2013

CaseChat Overview and Summary

The defendant, a Yalata Aboriginal man, sought a sentencing conference under s.9C of the Criminal Law (Sentencing) Act 1988 (SA) after being charged with theft and driving dangerously. The defendant, who was employed at Roxby Downs, had taken crystal meth before committing the offences and has no memory of the events. The defendant's counsel highlighted his remorse and the impact of the offences on his family and job. The primary issue was whether the court should exercise its discretion to convene a sentencing conference under s.9C of the Act, and if so, what factors should be considered. The court was required to consider the defendant's Aboriginal ethnicity, his status, position, and circumstances, and the potential benefits of a sentencing conference in understanding the defendant's background and circumstances, as well as his contrition and rehabilitation prospects.

The court held that the exercise of discretion under s.9C of the Act should be informed by the defendant's Aboriginal ethnicity and the potential benefits of a sentencing conference in understanding the defendant's background and circumstances, as well as his contrition and rehabilitation prospects. The court found that sufficient information about the defendant's Aboriginal ethnicity and circumstances had been provided to warrant a favourable exercise of discretion. The court also emphasised the importance of the defendant telling his story and hearing from the victim in order to gain a full appreciation of the circumstances of the offending. The court concluded that the sentencing conference would assist in fashioning an appropriate sentence by providing a better understanding of the defendant's background, contrition, and rehabilitation prospects.

The court granted the defendant's application for a sentencing conference under s.9C of the Act. The sentencing conference will include the defendant, his legal representative, the prosecutor, and the victim (if they choose to attend). The court also authorised the attendance of specific individuals who may contribute usefully to the sentencing process. The court reserved the question of the date, time, and place of the sentencing conference to Judge Cuthbertson, the circuit Judge for the criminal list for the Port Augusta circuit for September 2013. The court directed the defendant's legal representative and the prosecutor to obtain information on the availability of the victim and other authorised attendees and to inform Judge Cuthbertson of their availability at the call-over of the list in Adelaide on 30 August 2013.

Orders