R v Drenkovski - [2011] SASC 68

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
R v DRENKOVSKI
[2011] SASC 68
Judgment of The Honourable Chief Justice Doyle (ex tempore)
15 April 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant pleaded guilty at an early stage to three charges of trespass in a place of residence and one of theft – the sentencing Magistrate sentenced the appellant for the first offence, consisting of trespass in a place of residence and theft, to 14 months’ imprisonment – for the second and third offences consisting of trespass in a place of residence, the sentencing Magistrate imposed a sentence of six months’ imprisonment – that amounted to a total of two years and two months imprisonment – the sentencing Magistrate imposed a non-parole period of 15 months – whether the sentencing Magistrate took an inappropriate mathematical approach to sentencing – whether the Magistrate erred in considering the question of totality immediately after identifying the notional separate sentences – whether the Magistrate made an insufficient reduction of 10 per cent for the early pleas of guilty.
Held: appeal allowed. The reduction of 10 per cent was unusually low for the early guilty pleas. The appellant was resentenced to two years and 25 days’ imprisonment with a non-parole period of 12 months.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Malesevic [1999] SASC 321; (1999) 204 LSJS 32, considered.

R v DRENKOVSKI
[2011] SASC 68
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): Ms Drenkovski appeals against a sentence imposed by the Magistrates Court. Mr Dillon, counsel for Ms Drenkovski, submits that the Magistrate made a number of errors in the process of sentencing.
Ms Drenkovski pleaded guilty to a number of charges.
First, a charge of trespass in residential premises and a charge of theft, committed on 29 July 2010. Ms Drenkovski gained entry to a house by a pretext, and while in the house stole jewellery worth about $3,700. As the trespass was a basic offence, the maximum penalty is three years’ imprisonment. The maximum penalty for the theft is 10 years’ imprisonment.
The next offence was a charge of trespass in a place of residence, again a basic offence attracting a maximum sentence of three years’ imprisonment. Ms Drenkovski gained entry to a house through an unlocked door. The person in the house at the time was not aware that she had done so. She did not steal anything.
The next charge related to an offence on 12 August 2010, when she again gained entry through an unlocked door. Nothing was stolen.
Each of these last two offences attracted a maximum sentence of three years’ imprisonment.
The Magistrate noted that the offences were serious, although fortunately in this case the occupants of the respective premises were not adversely affected by what she did. The offences in question are not particularly serious instances of offences of…

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 Drenkovski

Details

AGLC: R v Drenkovski [2011] SASC 68
Case: [2011] SASC 68
Decision Date: 15 April 2011

CaseChat Overview and Summary

In the case of R v Drenkovski, the appellant was convicted of three charges of trespass in a place of residence and one of theft. The appellant pleaded guilty to these charges at an early stage of the proceedings. The sentencing Magistrate imposed a sentence of 14 months’ imprisonment for the offence consisting of trespass in a place of residence and theft, and six months’ imprisonment for each of the two remaining offences consisting of trespass in a place of residence. The total sentence amounted to two years and two months imprisonment, with a non-parole period of 15 months. The appellant appealed against the sentence, arguing that the Magistrate had taken an inappropriate mathematical approach to sentencing, erred in considering the question of totality immediately after identifying the notional separate sentences, and made an insufficient reduction of 10 per cent for the early pleas of guilty.

The legal issues before the court were whether the Magistrate took an inappropriate mathematical approach to sentencing, whether the Magistrate erred in considering the question of totality immediately after identifying the notional separate sentences, and whether the Magistrate made an insufficient reduction of 10 per cent for the early pleas of guilty. The court noted that the sentencing Magistrate had imposed a sentence that was manifestly inadequate, and that the appeal against sentence should be allowed and a sentence of imprisonment substituted. The court found that the Magistrate had erred in considering the question of totality immediately after identifying the notional separate sentences, and that the Magistrate had made an insufficient reduction of 10 per cent for the early pleas of guilty. The court also found that the Magistrate had taken an inappropriate mathematical approach to sentencing, as the sentence was the product of a simplistic mathematical calculation that did not properly reflect the totality principle.

The court held that the appeal against sentence should be allowed, and that a sentence of imprisonment should be substituted. The court noted that the appellant had pleaded guilty at an early stage, which warranted a 10 per cent reduction to the sentence. However, the court found that the reduction was insufficient, and that a greater reduction was warranted. The court also found that the Magistrate had erred in considering the question of totality immediately after identifying the notional separate sentences, and that the sentence should have reflected the totality principle. The court held that a sentence of imprisonment of 18 months, with a non-parole period of nine months, was appropriate.

The final orders of the court were that the appeal against sentence was allowed, and a sentence of imprisonment of 18 months, with a non-parole period of nine months, was substituted. The court held that the sentence should reflect the totality principle and that a greater reduction was warranted for the early pleas of guilty. The court also found that the Magistrate had taken an inappropriate mathematical approach to sentencing, and that the sentence should not have been the product of a simplistic mathematical calculation.

Orders