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R v Blackmore

R v Blackmore

Case [2004] SASC 298 24 September 2004

Manifestly Inadequate Sentence

Criminal Law

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BLACKMORE
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice White)
24 September 2004
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - PRACTICE AND PROCEDURE - SENTENCING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
DPP appeal against sentence - Respondent committed two robberies, stealing a total of $16,716.00 and one attempted robbery - In one robbery respondent made out that he was armed - Respondent 18 years of age at time of offending - Aboriginal - Mother gambling addict and father frequently incarcerated - Respondent left home at young age due to difficult relationship with stepfather - No prior convictions - Completed school and plannning for future study - Influenced to commit robberies by uncle who was addicted to amphetamines - Respondent pleaded guilty and showed contrition - District Court Judge imposed head sentence of three years with non-parole period of 18 months - Serious crimes - Need to provide general deterrence - Sentence manifestly inadequate - Discussion of principles applicable to DPP appeal - Appeal allowed - Respondent sentenced to six years imprisonment with non-parole period of 27 months.
Criminal Law Consolidation Act 1935 s155, s 270A; Criminal Law (Sentencing) Act 1988 s 18A, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; R v McMann (1997) 70 SASR 1; R v Place (2002) 81 SASR 395; Dinsdale v The Queen (2000) 202 CLR 321, applied.
Griffiths v The Queen (1977) 137 CLR 293, considered.

R v BLACKMORE
[2004] SASC 298
Court of Criminal Appeal: Doyle CJ, Perry and White JJ

DOYLE CJ:I have read the reasons prepared by White J. I agree with the orders proposed by him. I agree also with his reasons for making those orders. There is nothing that I wish to add.
PERRY J: I have had the benefit of an opportunity to read the reasons prepared by White J. I agree with the orders which he proposes and his reasons.
WHITE J:
Introduction
This is an application by the Director of Public Prosecutions (“the DPP”) for leave to appeal against the sentence imposed upon the respondent following his plea of guilty in the District Court to two counts of robbery and one count of attempted robbery.
The sentencing judge imposed a sentence of 3 years imprisonment with a non-parole period of 18 months, both to commence from 8 May 2003.
It is from that sentence that the DPP seeks leave to appeal. Submissions on the application for leave to appeal and submissions on the substantive merits were heard at the same time.
Circumstances of…

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 Blackmore

Details

AGLC: R v Blackmore [2004] SASC 298
Case: [2004] SASC 298
Decision Date: 24 September 2004

CaseChat Overview and Summary

The case of R v Blackmore involves an appeal by the Director of Public Prosecutions against the sentence imposed on the respondent, who was convicted of two robberies, one attempted robbery, and other related offences. The respondent, who was 18 years old at the time of the offending, stole a total of $16,716.00 in the two robberies, with one involving the claim that he was armed. The District Court Judge sentenced the respondent to a three-year imprisonment term, with a non-parole period of 18 months. The Director of Public Prosecutions appealed the sentence, arguing it was manifestly inadequate and failed to provide general deterrence.

The legal issues in the appeal centred around the principles governing the imposition of sentences for serious crimes and the role of general deterrence in sentencing. The appeal also examined whether the original sentence was manifestly inadequate in light of the respondent's circumstances, which included a difficult upbringing, no prior convictions, and a strong plan for future study. Additionally, the court had to consider the appropriate length of the non-parole period in relation to the head sentence and the need to balance the respondent's circumstances with the seriousness of the crimes.

The court, in allowing the appeal, noted the seriousness of the crimes and the necessity for general deterrence. It found the original sentence to be manifestly inadequate and increased the non-parole period by nine months. The court held that the respondent's background, while mitigating, did not outweigh the need to impose a sentence that reflected the seriousness of the crimes and provided general deterrence. The court substituted the original sentence with a six-year imprisonment term, with a non-parole period of 27 months, effective from 8 May 2003. The appeal was allowed, and the original sentence was set aside in favour of the substituted sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In all these circumstances, I would fix a non-parole period of 27 months, an increase of nine months on that fixed by the sentencing Judge. That non-parole period is to commence on 8 May 2003.Conclusion I would grant the application for leave to appeal and would allow the appeal. I would set aside the sentence of three years imprisonment imposed by the sentencing Judge and the non-parole period of 18 months fixed by him. I would substitute a single sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act, of six years imprisonment. I would fix a non-parole period of 27 months. Both the head sentence and the non-parole period should commence from 8 May 2003.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Blackmore [2004] SASC 298

Most Recent Citation

R v KHEM [2005] SASC 178

Cases citing this decision · 6 of 6 shown

Soun v The Queen; R v Soun
[2021] SASCA 119 Para 17

…etts [2011] SASCFC 27 were aggravated as the robberies were committed in company, with the maximum penalty being imprisonment for life. R v Blackmore [2004] SASC 298 and R v McGlynn [2011] SASCFC 74 were basic robbery offences, for which the maximum penalties were 14 years and 15 years imprisonment, respectively.…
Director of Public Prosecutions (SA) v Jones
[2021] SASCA 114 Para 1

…senkowski (1982) 30 SASR 212, 213 (King CJ); Everett v The Queen (1994) 181 CLR 295, 299‑300 (Brennan, Deane, Dawson and Gaudron JJ); R v Blackmore [2004] SASC 298, [22] (White J, with whom Doyle CJ and Perry J agreed); R v Harradine [2012] SASCFC 103, [17] (Sulan J, with whom White and Nicholson JJ agreed). [2] R…
R v Brant
[2018] SASCFC 72 Para 30

…s from retail premises, or from individuals, either without violence or with some violence, but not involving a weapon, was generally four years. [3] [2004] SASC 298. [4] Unreported, Court of Criminal Appeal, SA, per King CJ, Prior and Duggan JJ, No 304 of 1989, 23 February 1990. [5] [2011] SASCFC 27. [6] [2011] S…
R v SCOTT
[2014] SASCFC 131 Para 20

…egard to the appellant’s age and his prospects for rehabilitation in adopting the starting point of imprisonment for 4 years on each incursion. [5] [2004] SASC 298; (2004) 235 LSJS 272.…
R v Gannon
[2012] SASCFC 56 Para 27

…irst offence and the last offence but was reduced to three years on account of the offender’s guilty pleas. The sentences were made cumulative. [5] [2004] SASC 298.…
R v KHEM
[2005] SASC 178 Para 25

…In R v Blackmore [2004] SASC 298 White J referred to those two decisions before saying at [24]: “Those whose businesses and employments involve the handling of money are vulnerable to these types of offence. Such persons, and the community generally, are entitled to look to the Courts for protection and to expect…

View all 6 citing cases →

Cases cited in this decision · 6 of 6 shown

R v Osenkowski
[2005] SASC 142 Para 22

…and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience: R v Osenkowski (1982) 30 SASR 212 per King CJ at 213. In R v Nemer (2003) 87 SASR 168 at 172 [24] Doyle CJ put it slightly differently in holding that the Court should not grant leave…
R v Nemer
[2003] SASC 375 Para 22

…isproportionate to the seriousness of the crime as to shock the public conscience: R v Osenkowski (1982) 30 SASR 212 per King CJ at 213. In R v Nemer (2003) 87 SASR 168 at 172 [24] Doyle CJ put it slightly differently in holding that the Court should not grant leave to appeal to the prosecution merely with a view to…
R v Place
[2002] SASC 101 Para 24

…mmitted by the respondent are of a kind in which considerations of deterrence must generally predominate: R v McMann (1997) 70 SASR 1 at 3; R v Place (2002) 81 SASR 395 at 429 [100]. Those whose businesses and employments involve the handing of money are vulnerable to these types of offence. Such persons, and the com…
Dinsdale v The Queen
[2000] HCA 54 Para 26

…nd the principle that a sentence substituted on appeal should generally be at the lower end of the range of available sentences: Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at 341 [62].…
Everett v the Queen
[1994] HCA 49 Para 21

…The principles upon which leave is granted for a prosecution appeal against sentence are well established. In Everett v The Queen (1994) 181 CLR 295 at 299 – 230 it was held that leave to the prosecution to appeal against sentence should be granted only in the rare and exceptional case. The majority judgment in Evere…
Griffiths v The Queen
[1977] HCA 44 Para 21

…n Everett went on to hold that in considering the grant of leave, the Court should be guided by the comments of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310. Those comments were to the effect that leave ought not to be granted simply because the appellate court considers the sentence inadequate. The…

Legislation cited in this decision · 3

Criminal Law (Sentencing) Act 1988 (SA)
18A 2 mentions (from Para 27)
Consolidation Act 1935 (SA)
1 mention (from Para 12)
Criminal Law Consolidation Act 1935 (SA)
155 1 mention