R v Flentjar - [2003] SASC 361

R v FLENTJAR
[2003] SASC 361
Court of Criminal Appeal: Doyle CJ, Prior and Vanstone JJ

DOYLE CJ: I grant leave to appeal and would allow the appeal. I agree with the orders proposed by Vanstone J and with the reasons given by her for so deciding.
PRIOR J: I agree with the reasons given by Justice Vanstone and with the orders proposed.
VANSTONE J: This is an appeal against sentence. A judge of this court granted leave to appeal on three grounds of appeal, but refused leave to appeal on the first two grounds of appeal in the appellant’s notice of appeal. The application for leave to appeal on the first two grounds was renewed to this court.
The appellant was found guilty in the District Court of two counts of armed robbery, an offence attracting a maximum penalty of life imprisonment. The learned sentencing judge imposed a single sentence pursuant to section 18A Criminal Law (Sentencing) Act 1988 of eleven years and seven months imprisonment and fixed a non-parole period of eight years and seven months. Credit was given for five months in custody prior to sentence.
The first armed robbery was committed at about 11.00 pm on 3 April 2000 at the BP service station at Mile End. The appellant entered the store brandishing a .22 calibre sawn-off rifle and demanded money from the till. The female console operator and several customers were threatened with the rifle. Money totalling $295 was taken. The appellant fled the scene in a car driven by another person.
The second armed robbery occurred on 26 May 2000, soon after 9.00 pm. Again armed with a .22 sawn-off rifle, the appellant, together with another person, approached the reception desk of the South Park Motor Inn. The weapon was levelled at the female receptionist and money was demanded. She handed over $200. Both men then fled. Such a weapon, loaded and cocked, was found later in a garden bed in the south parklands, not far from the robbery scene. The learned sentencing judge found beyond reasonable doubt that this was the weapon used by the appellant in both robberies, and further, that on each occasion it was loaded.
At the time of the robberies the appellant was a little over 19 years of age. By the time of sentence he was 21 years old.
The grounds of appeal assert that the sentencing process was attended by error and also that the sentence imposed was manifestly excessive.
I turn first to the grounds which attracted a grant of leave. Ground 3 complains of the judge’s finding that the rifle used in the first robbery was loaded and cocked. There was no complaint of the finding that the same weapon was used in both robberies. That finding was supported by security videos taken during the robberies and which showed the firearm being brandished and evidence from a ballistics expert who viewed those videos and examined the weapon found in the parklands. The ammunition within that…

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.

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Details

AGLC: R v Flentjar [2003] SASC 361
Case: [2003] SASC 361
Decision Date: 24 October 2003

CaseChat Overview and Summary

In R v Flentjar, the appellant appealed against his sentence following a conviction for two counts of armed robbery. The District Court imposed a sentence of eleven years and seven months imprisonment with a non-parole period of eight years and seven months. The Court of Criminal Appeal considered the appeal on three grounds, allowing the appeal on the grounds that the non-parole period was manifestly excessive. The appellant had been in custody since January 2001, and the court was concerned that the non-parole period did not adequately account for this time and the appellant's youth and potential for rehabilitation. The court found that the non-parole period should be reduced to six years, while maintaining the overall sentence of eleven years and seven months imprisonment. The court highlighted the gravity of the crimes but also considered the mitigating factors, including the appellant's age and efforts to address his drug addiction while in custody.

Orders