R v Donges & Sutton - [2007] SADC 88

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DONGES & SUTTON
[2007] SADC 88
Ruling of His Honour Judge David Smith
24 August 2007
CRIMINAL LAW
Sentence - conflict between statements of witnesses in sentencing papers and submissions - discussion of effect of abandonment of statement by prosecution - held - in the circumstances the abandonment of the statements of two of the prosecution witnesses in a plea bargain is not binding on the sentencing Judge and sworn evidence may be required if sentencing is to proceed on a basis which is inconsistent even with the "abandoned" statements.
Malvaso v The Queen (1989) 168 CLR 227; R v Nemer (2003) 87 SASR 168; R v Perre (1986) 41 SASR 105; R v Lobban (2001) 80 SASR 550; R v Olbrich (1999) 199 CLR 270; R v Maitland [1963] SASR 332; R v Vecsey [1962] SASR 127; McAuliffe v R (1995) 183 CLR 108; R v Johns [1978] 1 NSWLR 282; Chow v DPP (NSW) (1992) 28 NSWLR 593, considered.

R v DONGES & SUTTON
[2007] SADC 88
Introduction

The above named defendants, Ian Frances Donges and David John Sutton were charged on an Information dated the 21^st September 2006 with having committed the following offences whilst in the company of one Paul Douglas Gifford:
·     Aggravated Serious Criminal Trespass in a place of Residence (one count);
·     Aggravated robbery (three counts); and
·     Theft (one count).
I set out hereunder the statement and particulars of the five offences.
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a place of Residence. (Section 170(2) of the Criminal Law Consolidation Act1935).
Particulars of Offence
Ian Frances Donges and David John Sutton on the 12^th day of May 2006 at Mount Gambier, while in the company of another, Paul Douglas Gifford and whilst armed with an offensive weapon, namely a knife, entered or remained in a place of residence being a motel room of Bradley Paul Yeomans, Tyler McAdam Jackman and Adam Lindsay Curkpatrick as trespassers, with the intention of committing an offence therein, namely an offence against the person, and when Bradley Paul Yeomans, Tyler McAdam Jackman and Adam Lindsay Curkpatrick were lawfully present in the said place and they knew of their presence or were reckless as to whether anyone was in the said place.
Second Count
Statement of Offence
Aggravated Robbery. (Section 137(2) of the of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Ian Frances Donges and David John Sutton on the 12^th day of May 2006 at Mount Gambier, while in the company with another, namely Paul Douglas Gifford and whilst armed with an offensive weapon, namely a knife, used force against Bradley Paul Yeomans in order to commit the theft of a mobile telephone, and the force was used immediately before the theft.
Third Count
Statement of Offence
Aggravated Robbery. (Ibid).
Particulars of Offence
Ian Frances Donges and David John Sutton…

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 Donges & Sutton

Details

AGLC: R v Donges & Sutton [2007] SADC 88
Case: [2007] SADC 88
Decision Date: 24 August 2007

CaseChat Overview and Summary

In the District Court of South Australia, the defendants Ian Frances Donges and David John Sutton were charged with multiple offences including aggravated serious criminal trespass, aggravated robbery, and theft. The charges arose from an incident where the defendants, along with a co-offender Paul Douglas Gifford, invaded a motel room, threatened the occupants with a knife, and stole personal property. The defendants entered into a plea bargain, with Donges pleading guilty to aggravated serious criminal trespass and theft, and Sutton pleading guilty to aggravated serious criminal trespass. The aggravated robbery charges were abandoned as part of the plea bargain.

The legal issues before the court were whether the plea bargain, which was inconsistent with the statements of witnesses, could bind the sentencing judge and whether the prosecution's abandonment of certain witness statements could prevent the judge from considering those statements in sentencing. The court considered authorities such as Malvaso v The Queen, R v Nemer, and R v Perre, which established that the sentencing judge is not bound by plea bargains and must sentence based on the facts as found in witness statements or sworn evidence.

The court concluded that the plea bargain did not bind the sentencing judge and that the prosecution's abandonment of witness statements was not a total rejection of their evidentiary value. The judge decided to sentence based on the witness statements unless sworn evidence established an alternative basis for sentencing. The judge found that the defendants' pleas were inconsistent with the statements of witnesses and with the basis upon which Gifford was sentenced. The court determined that the defendants were part of a joint enterprise with the intention to confront and possibly assault the victims, and that the use of a knife was an aggravating feature of the criminal trespass offence. The judge indicated that he would sentence based on the witness statements unless convinced otherwise by sworn evidence.

Orders