R v Dickinson - [2021] SASCFC 23

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Leave to Appeal)
R v DICKINSON
[2021] SASCFC 23
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, the Honourable Justice Blue and the Honourable Justice Doyle)
19 April 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
Application by Crown for permission to appeal against sentence.
The respondent had in 2018 been sentenced by a District Court Judge to imprisonment for three years seven months and seven days, with a non-parole period of two years, for armed robbery committed in September 2017.
In March 2020, while on parole for the earlier offending, the respondent committed a robbery by stealing $830 from the till at a tavern, in the course of which he grabbed a tavern employee by the left arm, told her to get the money and pushed her back towards the till.
The respondent was sentenced by a District Court Judge for the 2020 offending to imprisonment for two years four months and 25 days, reduced from a starting point of four years on account of his early guilty plea. That sentence was made cumulative on the balance, being one year one month and one day as at 12 March 2020, of the sentence imposed in 2018. This resulted in a total of the head sentences to be served of three years five months and 26 days. A non-parole period of two years (commencing on 12 March 2020) was fixed.
The Crown seeks permission to appeal on the ground that the head sentence and non-parole period are manifestly inadequate.
Held by the Court (granting permission to appeal and allowing the appeal):
1.The Judge erred in fixing the non-parole period of two years (at [36]-[39]).
2.The non-parole period was manifestly inadequate (at [40]).
3.Permission to appeal is required to be granted to correct the error and maintain public confidence in sentencing (at [41]-[42]).
4.Appeal allowed. Appellant resentenced to imprisonment for two years and six months, to commence on the expiry of the sentence imposed by the District Court on 27 February 2018, with a non-parole period fixed in respect of the old and new sentences of two years and seven months commencing on 12 March 2020 (at [45]).

R v Buttigieg [2020] SASCFC 38; R v Brant [2018] SASCFC 72; R v Bahrami [2020] SASCFC 111; R v Culley (2019) 134 SASR 92; Da Silva v The Queen [2020] SASCFC 66; R v Palmer [2016] SASCFC 34; R v McIntyre [2020] SASCFC 101, considered.

R v DICKINSON
[2021] SASCFC 23

Court of Criminal Appeal: Kelly, Blue and Doyle JJ

THE COURT: This is an application by the Crown for permission to appeal against sentence.
The respondent, Robert Richard Peter Dickinson, was sentenced by a District Court Judge to imprisonment for two years,…

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 Dickinson

Details

AGLC: R v Dickinson [2021] SASCFC 23
Case: [2021] SASCFC 23
Decision Date: 19 April 2021

CaseChat Overview and Summary

The Crown sought permission to appeal against the sentence imposed on the respondent, Dickinson, by the District Court of South Australia. The dispute concerned the adequacy of the head sentence and non-parole period fixed for an armed robbery committed by the respondent on 11 March 2020, shortly after his release on parole for a previous armed robbery conviction.

The legal issues before the Court of Criminal Appeal of South Australia were whether the District Court Judge erred in fixing the non-parole period and whether that period was manifestly inadequate. The Court was required to consider the principles of sentencing, particularly in relation to repeat offending and the need to maintain public confidence in the justice system.

The Court found that the Judge had erred in fixing the non-parole period at two years, deeming it manifestly inadequate given the circumstances of the offending, which occurred while the respondent was on parole and involved the use of intimidation against a tavern employee. The Court reasoned that a more substantial non-parole period was necessary to reflect the seriousness of the offence and to deter future offending. Permission to appeal was granted to correct this error and uphold public confidence in sentencing.

The appeal was allowed, and the respondent was resentenced. The new sentence was imprisonment for two years and six months, to commence upon the expiry of the previous sentence imposed by the District Court on 27 February 2018. A non-parole period was fixed in respect of both the old and new sentences, totalling two years and seven months, commencing on 12 March 2020.

Orders

Orders of the court

Held by the Court (granting permission to appeal and allowing the appeal):

1. The Judge erred in fixing the non-parole period of two years (at [36]-[39]).

2. The non-parole period was manifestly inadequate (at [40]).

3. Permission to appeal is required to be granted to correct the error and maintain public confidence in sentencing (at [41]-[42]).

4. Appeal allowed. Appellant resentenced to imprisonment for two years and six months, to commence on the expiry of the sentence imposed by the District Court on 27 February 2018, with a non-parole period fixed in respect of the old and new sentences of two years and seven months commencing on 12 March 2020 (at [45]).

Background

Background to the litigation

The Crown seeks permission to appeal on the ground that the head sentence and non-parole period are manifestly inadequate.Background On 27 February 2018 the respondent was sentenced (the 2018 sentence) in the District Court to imprisonment for three years, seven months and seven days, with a non-parole period of two years, for armed robbery committed on 7 September 2017 (the 2017 offending).[2] The head sentence and non-parole period were backdated to commence on 7 September 2017, being the day on which the respondent was taken into custody.[2] Criminal Law Consolidation Act 1935 section 137(1). On 6 January 2020 respondent was released on parole. On 11 March 2020 at about 10.00 pm the respondent was gambling on poker machines at a tavern in Mount Gambier, having used methylamphetamine and consumed alcohol. When he ran out of money and was about to leave, he decided spontaneously to go behind the bar in the front bar and steal money from the till in order to continue gambling. He pulled his hood over his head and his T-shirt up over his nose. A tavern employee approached him to push him back out from behind the bar area. The respondent grabbed her by the left arm, said “Get the money” and pushed her back towards the till. She opened the till and the respondent took $830 and left the tavern. The respondent went to another hotel in Mount Gambier, where he lost the stolen money gambling. He was arrested in the early hours of 12 March 2020. He admitted the offending and told the police that he would plead guilty. The robbery was captured on the tavern’s closed circuit television system. The tavern employee later picked out the respondent in a photographic identification procedure. The respondent pleaded guilty in the Magistrates Court within four weeks of his first appearance and thereby became entitled to a discount of up to 40 per cent pursuant to section 40(3)(a) of the Sentencing Act 2017 (SA) as it then was (the Act).[3][3] That provision has since been amended to reduce the maximum discount to 35 per cent generally and 25 per cent for a serious indictable offence (which does not include robbery). However, those amendments do not apply to the sentencing of the respondent. The respondent was born in 1975. He completed high school to year 10 and left school when he was 16 years old. He was subjected to physical and emotional abuse by his father, who was a heavy drinker. At the age of 15 the respondent began drinking alcohol and using marijuana and became a heavy drinker and marijuana user. He worked as a bricklayer’s labourer until the age of 21 (1996). At the age of 19 he commenced using methylamphetamine and became a heavy user. In 1996, at the age of 21, the respondent was sentenced to imprisonment for one year and five months, with a non-parole period of six months, in respect of several offences including three counts of larceny. In 1997 the respondent was sentenced to imprisonment for one year, one month and 26 days, with a non-parole period of nine months, in respect of driving offences. In 2000 he was sentenced to imprisonment for one year and three months, with a non-parole period of seven months, in respect of several offences including seven counts of larceny.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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