R v Black No. Sccrm-99-414 - [2001] SASC 82

R v BLACK
[2001] SASC 82

Court of Criminal Appeal: Doyle CJ, Nyland and Gray JJ

1................ DOYLE CJ:.... Mr Black has appealed against a sentence imposed by the District Court.

The appellant pleaded guilty in the District Court to a charge of robbery and a charge of armed robbery. The judge imposed separate sentences for each offence. For the offence of robbery, the appellant was sentenced to imprisonment for four years and six months. For the offence of armed robbery, he was sentenced to imprisonment for eight years and two months.
Taking into account the principle of totality, the trial judge ordered that two years of the second sentence be served concurrently with the first sentence, thus sentencing the appellant to imprisonment for a total of ten years and eight months.
The appellant was on parole when he committed these offences. He was therefore liable to serve the balance of the sentence as at the date of the first offence. The balance was one year, four months, 25 days. Thus, the final head sentence was twelve years, 25 days.
The judge fixed a non-parole period of nine years in relation to that total head sentence.
The appellant submits that the sentence is manifestly excessive and, further, that it failed to take into account his prospects of rehabilitation.
At the time of the commission of both offences, the appellant was on parole in respect of a conviction in 1995 for armed robbery. For that offence, he was sentenced to imprisonment for six years with a non-parole period of four years. Within a very short time of being released on parole, the appellant committed the robbery offence.
The appellant has a long criminal record spanning nearly 30 years. There are a number of offences of a very serious nature. In particular, the commission of two armed robberies in 1979, for which the appellant received a nine year sentence of imprisonment.
The appellant has been convicted of numerous other offences relating to property, assault, drugs and dishonesty, for which he also received terms of imprisonment. As I have mentioned, in 1995 he was convicted of another armed robbery, the offence for which he was on parole when the offences in question occurred.
The circumstances of the two current offences are grave. The robbery offence involved the appellant entering the Westpac Bank in Gouger Street, proffering a bag to a teller and threatening her with the fact that he had a gun and would shoot her if she did not fill the bag. The appellant made gestures to suggest he had a gun secreted in his waist. He was not, in fact, carrying a concealed weapon. He escaped with $11 455.
Less than a month later, the appellant arranged with another man to rob a small supermarket. The appellant effected the plan by entering the supermarket, pointing a replica pistol to the proprietor, handing him a bag and telling him to fill it with money. Subsequently he pushed the replica pistol into…

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.

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Details

Case: [2001] SASC 82
Decision Date: 21 March 2001

CaseChat Overview and Summary

In the case of R v Black, the appellant, Mr Black, appealed against the sentence imposed by the District Court, which found him guilty of robbery and armed robbery. The Court of Criminal Appeal, consisting of Doyle CJ, Nyland and Gray JJ, was tasked with reviewing the sentence imposed by the District Court. The legal issues before the Court of Criminal Appeal were whether the sentences imposed by the District Court were manifestly excessive, and whether the trial judge had failed to take into account the appellant's prospects of rehabilitation.

The Court of Criminal Appeal held that the sentences imposed by the District Court were not manifestly excessive. The Court found that the trial judge had appropriately considered the gravity of the offences, the appellant's criminal history, and his age. The Court also noted that the use of a replica pistol did not constitute a mitigating factor, as the primary purpose of using such a weapon was to intimidate and frighten the victims. The Court found that the trial judge had adequately considered the need for personal and general deterrence in determining the sentence. The Court further held that the trial judge was entitled to form the view that the appellant's prospects of rehabilitation were limited, based on his criminal history, past drug use, and personality problems.

The Court of Criminal Appeal dismissed the appeal, and upheld the sentence imposed by the District Court. The Court ordered that the appeal be dismissed, and that the appellant serve the sentence imposed by the District Court.

Orders