R v CASSIDY - [2017] SASCFC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CASSIDY
[2017] SASCFC 134
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)
13 October 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
Appeal against sentence imposed in the Magistrates Court. Application for permission to appeal sentence imposed in the District Court.
The appellant was first sentenced in the District Court to several sentences for 54 offences, predominantly serious criminal trespasses and associated thefts. The value of the thefts approximated $200,000 committed over a period of four months. The appellant has a ‘gruesome history’. Until that sentence was imposed the longest period of imprisonment the appellant served for offences of dishonesty was close to 21 months. The sentences imposed were partially concurrent and cumulative and totalled 16 years imprisonment with eight years non-parole fixed (the District Court sentence).
On 19 February 2014 the appellant was sentenced for a further 14 offences, predominantly serious criminal trespasses and associated thefts in a similar period. The Magistrate sentenced the appellant to a further four years imprisonment cumulative upon the District Court sentence. The non-parole period was extended to nine years.
The appellant was therefore sentenced to a head sentence of 20 years and a non-parole period of nine years commencing on 5 September 2012. The appellant appeals both sentences on the ground that each sentence and the totality is manifestly excess and that the Judge in the District Court ought to have considered the offending a continuous course of conduct.
Held per Kourakis CJ (Peek and Nicholson JJ agreeing), granting permission to appeal and allowing the appeal:
1.      The increase from a sentence of close to 21 months to a sentence of 16 years for the District Court offending was too high.
2.      The offending was committed while the appellant was overwhelmed by handicaps which had afflicted him since childhood.
3.      Cumulative sentences can increase the relative severity of the punishment imposed and decrease the requirement for personal deterrence.
4.      The appellant is resentenced with the effect, due to reductions and orders that sentences be served cumulatively, that the total head sentence for both the District Court and Magistrate sentences is 14 years and a non-parole period of seven years and three months is fixed commencing on 5 September 2012.
Criminal Law Consolidation Act 1935 (SA) s 134, s 170, referred to.
R v Copeland (No 2) (2010) 108 SASR 398, applied.
Flentjar v Daire (1983) 32 SASR 101; R v Delphin (2001) 79 SASR 429, discussed.

R v CASSIDY
[2017] SASCFC 134
Court of Criminal Appeal: Kourakis CJ, Peek and Nicholson JJ

KOURAKIS CJ: This is an appeal against a sentence imposed in the Magistrates Court, and an application for permission to appeal against a…

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 CASSIDY

Details

AGLC: R v Cassidy [2017] SASCFC 134
Case: [2017] SASCFC 134
Decision Date: 13 October 2017

CaseChat Overview and Summary

The case of *R v Cassidy* concerned an appeal against sentence. The appellant, Cassidy, had been sentenced by the District Court to a head sentence of 16 years imprisonment, with a non-parole period of eight years. The appeal was heard by the Supreme Court of South Australia, constituted by Kourakis CJ, Peek and Nicholson JJ.

The central legal issue before the Full Court was whether the head sentence imposed by the District Court was manifestly excessive, thereby providing grounds for appellate interference. This involved considering the principles governing the imposition of cumulative sentences, particularly in circumstances where an offender has a history of prior offending and the total sentence represents a significant escalation from previous penalties.

The Court reasoned that while a graduated approach to personal deterrence is permissible, especially for younger offenders or those at the lower end of the criminal calendar, there are limits to the linear accumulation of sentences. The Court referred to *R v Flentjar* where Zelling J discussed the principle that a cumulative sentence may exceed the typical sentence for a single offence of that kind, but noted that a significant jump in the total head sentence from previous maximum sentences can be excessive. In Cassidy's case, the Court found that the jump from a previous highest sentence of approximately 21 months to a head sentence of 16 years was too high. The relatively low non-parole period fixed by the sentencing judge was also considered an indicator that the head sentence was excessive, particularly given the offender's poor prospects of rehabilitation. The Court also noted that a small extension of one year by the Magistrate when increasing the head sentence by four years suggested that the cumulative sentence imposed was too high.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There is a further limit on a linear accumulation. For offences falling in the lower end of the criminal calendar which individually would not warrant long sentences, it is both possible and desirable to take a graduated approach to personal deterrence. Sentences of imprisonment may be increased incrementally having regard to the length of sentences previously imposed. Of course, ultimately, if an offender persists in recidivistic offending, the total head sentence for multiple offending may be as severe as sentences imposed for much more serious offences. However, there is some scope to postpone visiting the full consequences of the offending on a young offender. In R v Flentjar v Daire Zelling J explained: [3]Mr Tilmouth’s last point was that the sentences, looked at in their totality as five years’ imprisonment, were in any event manifestly excessive. Mr. Tilmouth said that a head sentence of five years’ imprisonment approaches those given for rape and for the lower categories of robbery. I do not think that this matters where one is dealing with cumulative sentences. If a man commits a series of offences of such a kind that they should be dealt with cumulatively, then the fact that the cumulative sentence takes the totality of the sentence above what is normally awarded for that type of offence is simply a result of his criminal behaviour. This appellant had a series of convictions for dishonesty going back to appearances in the Juvenile Court in 1973. Various courts have tried fines, bonds, probation, suspended sentences, and straight out imprisonment and none of these have caused the appellant to change his way of life. Under these circumstances it seems to me that the Magistrate had to deal with the matter seriously. However, I think the jump to five years imprisonment was too high taken in totality. This man’s previous highest sentences have been the ones of fifteen months and twelve months to which I have already referred, and I think that a total sentence of four years’ imprisonment for these offences would have been sufficient. Giving effect to the fact that he had already spent three months in gaol prior to being sentenced that means that the sentence for housebreaking relating to Parkin should be reduced to one of two years and three calendar months with hard labour and that the overall head sentence should be three years and nine calendar months, giving credit for the time served prior to sentence. The Magistrate, after considering the matter carefully, fixed an overall non-parole period of eighteen calendar months and although I have reduced the sentence I see no reason to alter the non-parole period which will bring home to the appellant, if anything will, the fact that a life of crime simply is not worthwhile.[3] (1983) 32 SASR 101 at 105.Conclusion The jump in this case from a previously highest sentence of close to 21 months to 20 years was too high. Indeed, the jump to a head sentence of 16 years in the District Court was in itself too high. The fixing by the Judge of a relatively low non-parole period, of eight years for the head sentence of 16 years for an offender who does not have good prospects of rehabilitation is an indication that the head sentence is too high. The small extension of one year effected by the Magistrate when he had increased the head sentence by four years similarly indicates that the term of the cumulative sentence he imposed was too high.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.