R v Brant

Case [2018] SASCFC 72

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BRANT

[2018] SASCFC 72

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Blue)

5 July 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - GENERALLY

Appeal against a single sentence of imprisonment imposed pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) in the District Court on the appellant’s convictions for the offences of serious criminal trespass (non-aggravated) and theft, and attempted robbery (non-aggravated).

The Judge imposed a sentence of one year, four months and one week for the trespass and theft offences, and two years, nine months and three weeks for the attempted robbery. The Judge ordered that six months be served concurrently.

Held, per Kourakis CJ (Kelly and Blue JJ agreeing), allowing the appeal:

1.     The Judge’s misapprehension that the robbery was attended by an aggravating feature is significant in this case because, properly characterised, the offending was a relatively less serious example of a simple robbery from a retail store (at [7]).

2.     The misdescription of the attempted robbery offence as an aggravated one is an error (at [33]).   The Judge mistakenly treated the offence as a graver offence of robbery than it in fact was (at [33]).

3.     The sentence for attempted robbery must be set aside and the appellant resentenced in accordance with the orders of this Court (at [35]).

Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 134, s 137, referred to.
R v Delphin (2001) 79 SASR 429; R v Gannon (2012) 113 SASR 1, applied.
R v Horstmann [2010] SASC 103, not followed.
R v Blackmore [2004] SASC 298; R v Van Huizen Unreported, Court of Criminal Appeal SA, No 304 of 1989, 23 February 1990; R v Betts [2011] SASCFC 27; R v McGlynn [2011] SASCFC 74; R v Lutze (2014) 121 SASR 144, discussed.

R v BRANT
[2018] SASCFC 72

Court of Criminal Appeal:  Kourakis CJ, Kelly and Blue JJ

  1. KOURAKIS CJ: This is an appeal against a single sentence of imprisonment imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) in the District Court on the appellant’s convictions for the offences of:

    ·serious criminal trespass (non-aggravated) on a Wynn Vale home and theft of property therefrom to the value of $4,979 on the evening of 25 January 2017; and

    ·attempted robbery of a gold bracelet (non-aggravated) valued at almost $18,000, committed against an employee of the Shiels Jewellers store in Regent Arcade on 27 January 2017.

  2. The Judge imposed a sentence of one year, four months and one week for the trespass and theft offences, and two years, nine months and three weeks for the…

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R v Brant [2018] SASCFC 72
Case
[2018] SASCFC 72
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CaseChat Overview and Summary

The appeal concerned a sentence imposed by the District Court of South Australia on the appellant, who had been convicted of serious criminal trespass (non-aggravated) and theft, and attempted robbery (non-aggravated). The appeal was brought against the single sentence of imprisonment.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in their discretion, specifically concerning the consideration of relevant factors and the imposition of a cumulative sentence. The Court also considered the principles governing appeals against sentence, particularly when a miscarriage of justice is alleged.

The Court found that the Director's submission, relying on a passage from *R v Horstmann*, that a failure to consider a relevant factor or the consideration of an irrelevant factor would not vitiate the sentencing discretion unless it also resulted in a manifestly excessive sentence or a miscarriage of justice, was plainly wrong. The Court clarified that such failures constitute errors that can vitiate the sentencing discretion. The Court then proceeded to resentence the appellant for the attempted robbery. It determined that the offence, while conceived as a theft, escalated to a robbery at the lower end of the violence spectrum. A starting point of three years and four months was considered, reduced by 40 per cent for an early guilty plea, resulting in a sentence of two years imprisonment. This sentence was ordered to be served cumulatively on the sentences for the other offences, given the distinct nature and timing of the attempted robbery.

The appeal was allowed on ground 2. The head sentence of two years, nine months, and three weeks imprisonment for attempted robbery, and the associated non-parole period of two years and five months, were set aside. Instead, the appellant was resentenced to 24 months imprisonment for attempted robbery, to be served cumulatively on the sentence for the serious criminal trespass and theft offences. A non-parole period of two years and two months was fixed, to commence on 11 October 2017.

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

Counsel for the Director submitted that even if the mischaracterisation was an error, this Court should not interfere with the sentence unless it was also manifestly excessive or was otherwise a miscarriage of justice. In making this submission, counsel for the Director relied on a passage in the judgment of Gray J in R v Horstmann.[8]Insofar as that passage suggest that a failure to have regard to a relevant consideration, or having regard to an irrelevant consideration, are not errors which vitiate the sentencing discretion, it is plainly wrong. [9] It is difficult to understand what is meant by a miscarriage of justice in the context of an appeal against sentence. If it means a failure to attend only to relevant sentencing matters, then the passage is no more than a repetition of the well-established principles of appellant intervention in sentencing appeals. It should be so understood.[8] [2010] SASC 103 at [16].[9] R v Lutze (2014) 121 SASR 144.Resentencing and conclusion For the reasons just given, the sentence for the attempted robbery must be set aside and the appellant resentenced. The offence was conceived by an alcoholic as a theft, but in its botched execution became a robbery. The attempt to wrest control of the bracelet is at the very low end of the scale of violence by which robberies are commonly effected. I would commence with a starting point of three years and four months. I would reduce the sentence by 40 per cent for the appellant’s early guilty plea. I would sentence the appellant to imprisonment for two years. There is insufficient reason to make any part of that sentence concurrent with the sentences imposed for the serious criminal trespass and theft offences. The attempted robbery was quite different in nature and committed several days later. I would therefore order that the sentence for the attempted robbery be served cumulatively. I would fix a non-parole period of two years and two months to commence on 11 October 2017.Orders1.Appeal allowed on ground 2.2.Set aside the head sentence of two years nine months and three weeks imprisonment imposed on the conviction for attempted robbery and set aside the non-parole period of two years and five months.3.Order instead that the appellant be resentenced on his conviction for attempted robbery to a term of 24 months imprisonment to be served cumulatively on the sentence of one year four months and one week for the serious criminal trespass and theft offences and fix a non-parole period of two years and two months, to commence on 11 October 2017. KELLY J: I agree with the reasons of the Chief Justice. BLUE J: I agree with the Chief Justice and his reasons.

Ratio Decidendi

Legal Principle Established

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