R v Cattell - [2010] SASCFC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CATTELL
[2010] SASCFC 18
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice White)
2 August 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - IRREGULARITIES - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
Appellant pleaded guilty to a number of property related offences - appellant also admitted breaching good behaviour bond - Judge imposed a single sentence of imprisonment - whether sentence in respect of some of the offences excessive - whether overall sentence excessive - whether reduction for time spent in custody had to be reflected in either the single sentence imposed or in the period of the suspended sentence carried into effect - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 85(2), s 134(1), s 170(1), s 170(2), s 270A; Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 18A, s 30(2), s 58(4)(a), s 58(4)(b), s 58(4)(c); Magistrates Act 1983 (SA) s 22; Summary Offences Act 1953 (SA) s 6(2), s 15(1)(a), s 17(1), referred to.
Police v Miller (2007) 96 SASR 240; R v B, RWK (2005) 91 SASR 200; R v Delphin (2001) 79 SASR 429; R v Major (1998) 70 SASR 488; R v Randall-Smith (2008) 100 SASR 326, considered.

R v CATTELL
[2010] SASCFC 18
Court of Criminal Appeal: Doyle CJ, Bleby and White JJ

DOYLE CJ: Mr Cattell appeals against a sentence imposed by the District Court for a number of offences.
He complains that the sentence in respect of some of the offences is excessive. He complains also that the end result is excessive, even if the sentence attributable to a particular offence is not excessive. The end result was imprisonment for six years nine months (to which should be added three months spent in custody). Included in that overall end result is a suspended sentence of imprisonment for twelve months, which the Judge directed be carried into effect. The Judge fixed a non-parole period of four years.
The sentence imposed by the Judge was a single sentence of imprisonment in exercise of the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the CLSA). When I refer to an “indicated sentence” I am referring to the punishment that the Judge said was attributable to a particular offence or offences.
I agree that two of the indicated sentences are at the upper end of an appropriate range, and are severe. But none of the indicated sentences are excessive. The end result is a substantial period of imprisonment, but the end result is not excessive. Mr Cattell has a bad record. Despite previous periods of imprisonment, he continues to offend. He has to learn that he cannot go on like…

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 Cattell

Details

AGLC: R v Cattell [2010] SASCFC 18
Case: [2010] SASCFC 18
Decision Date: 2 August 2010

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, R v Cattell, by the Supreme Court of South Australia. The appellant sought to appeal against the sentence, arguing it was manifestly excessive.

The primary legal issue before the Full Court was whether the sentencing judge had erred in imposing the sentence, specifically in relation to the application of the totality principle when sentencing for multiple offences. A secondary issue arose regarding the rectification of the record of the sentence.

The Full Court, comprising Doyle CJ, Bleby and White JJ, dismissed the appeal against sentence. Doyle CJ refused permission to amend the grounds of appeal, finding no substance in the proposed new grounds. Bleby J agreed with the Chief Justice's reasons and added that while individual indicative sentences might have appeared severe, the sentencing judge had appropriately applied the totality principle under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) when arriving at the final single sentence of six years. Bleby J noted that even if individual sentences were lower, the final outcome would likely have been similar after applying the totality principle. White J also agreed that the appeal should be dismissed and concurred with the Chief Justice's reasons. The court also agreed that the record of the sentence required rectification under s 9A of the Criminal Law (Sentencing) Act.

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

I would refuse permission to amend the grounds of appeal as there is no substance in this point.Conclusion I would dismiss the appeal against sentence. BLEBY J: I agree with the orders proposed by the Chief Justice and with his reasons. I merely add that, although some of the individual indicative sentences adopted by the sentencing Judge were severe, when considering the total and proposed single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the Judge made an appropriate deduction for totality before arriving at the final figure of six years. Had he considered what the appellant might regard as appropriately lower individual sentences, it would not have been necessary to adjust the final figure in accordance with the totality principle, and the final result would have been much the same. I also agree that the record of the sentence requires rectification under s 9A of the Criminal Law (Sentencing) Act in the manner indicated by the Chief Justice. WHITE J: I agree that the appeal should be dismissed. I also agree with the reasons of the Chief Justice.

Ratio Decidendi

Legal Principle Established

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