R v Brant

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.