R v Dunk - [2008] SASC 290

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DUNK
[2008] SASC 290
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
31 October 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Appeal against sentence - appellant jointly charged on information with another defendant with three offences of committing theft using force - both accused pleaded guilty to the offences and were sentenced in the District Court to the same penalty with respect to the offending: a term of imprisonment of two years and six months with a non-parole period of 10 months - appellant and his co-accused who was aged 21 years had materially different antecedents: appellant was aged 18 years, had good rehabilitation prospects, and his co-accused had committed these offences in breach of a good behaviour bond - whether the appellant's sentence should have been suspended.
Held: appeal allowed - sentencing Judge’s discretion, in determining not to suspend the appellant’s sentence, miscarried - Judge did not recognise that the other defendant's breach of bond was an aggravating circumstance - not appropriate to impose the same sentence - Judge did not have proper regard to the age, unblemished record, and rehabilitation prospects of the appellant - appellant's sentence suspended on his entering into a three year supervised good behaviour bond with conditions - appellant to undertake 100 hours of community service.
Criminal Law Consolidation Act 1935 (SA) s 137, s 270B and s 353, referred to.
Readman (1990) 47 ACrimR 181; R v Flentjar [2003] SASC 361, considered.

R v DUNK
[2008] SASC 290
Court of Criminal Appeal Gray, Sulan and David JJ
THE COURT

This is an appeal against sentence.
Background
The defendant and appellant, Mason Hamilton Dunk, was jointly charged on information with Stephen John McKee with three offences of committing theft using force contrary to section 137(1) of the Criminal Law Consolidation Act 1935 (SA).[1] Each was said to be an aggravated offence within the meaning of the section. There was a further charge of assault with intent to commit an offence contrary to section 270B(1) of the Criminal Law Consolidation Act.[2]
[1] Section 137(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
“A person who commits theft is guilty of robbery if—
(a)     the person—
(i)uses force, or threatens to use force, against another in order to commit the theft; or
(ii)uses force, or threatens to use force, against another in order to escape from the scene of the offence; and
(b)the force is used, or the threat is made, at the time of, or immediately before or after, the theft.
Maximum penalty:
(a)     for a basic offence—imprisonment for 15 years;
(b)     for an aggravated offence—imprisonment for life.”
[2] Section 270B(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
“Subject to subsection (2), a person who assaults another with intent to commit an offence…

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 Dunk

Details

AGLC: R v Dunk [2008] SASC 290
Case: [2008] SASC 290
Decision Date: 31 October 2008

CaseChat Overview and Summary

The Court of Criminal Appeal heard an appeal against the sentence of Mason Hamilton Dunk, who was jointly charged with Stephen John McKee on information with three offences of committing theft using force, contrary to section 137(1) of the Criminal Law Consolidation Act 1935 (SA). Both defendants pleaded guilty to the offences, and were sentenced in the District Court to the same penalty with respect to the offending: a term of imprisonment of two years and six months with a non-parole period of 10 months. The appeal was concerned with whether the appellant's sentence should have been suspended.

The court considered the sentencing principles and whether the sentencing judge exercised their discretion appropriately. The court found that the sentencing judge's discretion in determining not to suspend the appellant's sentence miscarried. The judge did not recognise that the other defendant's breach of bond was an aggravating circumstance, and did not have proper regard to the age, unblemished record, and rehabilitation prospects of the appellant. The court concluded that it was not appropriate to impose the same sentence on both defendants.

The court allowed the appeal and suspended the appellant's sentence on his entering into a three-year supervised good behaviour bond with conditions. The appellant is to undertake 100 hours of community service. The sentence imposed by the District Court judge is suspended on the appellant entering into a supervised three-year good behaviour bond on the terms earlier referred to.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against sentence. Background The defendant and appellant, Mason Hamilton Dunk, was jointly charged on information with Stephen John McKee with three offences of committing theft using force contrary to section 137(1) of the Criminal Law Consolidation Act 1935 (SA).[1] Each was said to be an aggravated offence within the meaning of the section. There was a further charge of assault with intent to commit an offence contrary to section 270B(1) of the Criminal Law Consolidation Act.[2] [1] Section 137(1) of the Criminal Law Consolidation Act 1935 (SA) provides:“A person who commits theft is guilty of robbery if— (a) the person— (i)uses force, or threatens to use force, against another in order to commit the theft; or (ii)uses force, or threatens to use force, against another in order to escape from the scene of the offence; and (b)the force is used, or the threat is made, at the time of, or immediately before or after, the theft. Maximum penalty: (a) for a basic offence—imprisonment for 15 years; (b) for an aggravated offence—imprisonment for life.”[2] Section 270B(1) of the Criminal Law Consolidation Act 1935 (SA) provides:“Subject to subsection (2), a person who assaults another with intent to commit an offence to which this section applies is guilty of an offence.” The appellant and Mr McKee pleaded guilty to the offences and were both sentenced in the District Court to the same penalty with respect to the offending. In each case a head sentence was imposed of two years and six months and a non-parole period fixed of 10 months. Neither sentence was suspended. Mr McKee’s conduct breached an earlier suspended sentence good behaviour bond. The sentencing Judge revoked the suspension of that six week sentence and directed that the sentence of two years and eight months be cumulative on that revoked suspended sentence. We will return to discuss the implications that flow from the way in which the Judge sentenced the appellant and Mr McKee later in these reasons. The circumstances of the offending were not disputed. Mr McKee, then aged 21 years, and the appellant, then aged 18 years, had engaged in heavy drinking during the night of 13 September 2007 and the early morning of 14 September 2007. They had run out of money and wanted to obtain further funds to purchase more alcohol. It was against this background that the offending occurred. The appellant’s behaviour was materially affected by alcohol. The four offences occurred in the morning of 14 September 2007. At about 7.40am the appellant and Mr McKee approached a schoolboy who was leaving his vehicle to walk to his school. The appellant and Mr McKee threatened the boy, which led to the boy handing over $5.00. Mr McKee then seized the boy’s bag, searched it and seized his mobile phone. The boy was threatened that if he tried to identify their vehicle they would “beat him up”. Shortly thereafter, at about 7.45am, another boy, a boarder at the same school, was walking to the boarding house to have breakfast. The appellant and Mr McKee approached the boy and demanded money. The boy had no money with him, and in emptying his pockets revealed his mobile phone. Mr McKee seized the mobile phone and then the appellant and Mr McKee threatened the boy and left.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is the view of this Court that the suspended sentence bond should be a three-year supervised good behaviour bond, that the appellant should undergo such courses as to drug and alcohol abuse, victim awareness, and otherwise, as his supervising correctional services officer may recommend. It is to be a further condition of the bond that the appellant undertake 100 hours of community service in the 18 month period following his entry into the bond, as directed by his correctional services officer.Conclusion This appeal is allowed. The sentence imposed by the District Court Judge is suspended on the defendant entering into a supervised three-year good behaviour bond on the terms earlier referred to.

Ratio Decidendi

Legal Principle Established

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