R v Franceschini

Case [2015] SASCFC 116

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v FRANCESCHINI

[2015] SASCFC 116

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Bampton and The Honourable Justice Lovell)

17 August 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - OTHER PARTICULAR CASES

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT

Appeal against sentence. The appellant was sentenced on 23 April 2015 for two counts of theft, one count of arson and one count of unlawful possession. A total head sentence of six years with a non-parole period of three years and six months was imposed. The Judge backdated the sentence by six months to reflect time spent in custody and on home detention bail following the appellant’s arrest, in purported reliance on section 30(2) of the Criminal Law (Sentencing) Act 1988.

The grounds of appeal are that the total head sentence and non-parole period is manifestly excessive, that the judge failed to give adequate consideration to totality, and that the judge incorrectly applied section 30(2).

Held (Nicholson J, Bampton and Lovell JJ agreeing):

1.  The sentence was not manifestly excessive.

2.  The principle of totality had no application to this case.

3. There is no power, pursuant to section 30(2) of the Criminal Law (Sentencing) Act 1988, to backdate a sentence to take into account time spent on home detention bail.

4. It also would not have been within any discretion available under section 30(1) to backdate for this reason, in the circumstances of this case.

5.  Appeal is allowed. The original sentence is set aside and the appellant is resentenced with a head sentence of five and a half years and a non-parole period of three years. The sentence is to commence on 23 April 2015.

Criminal Law (Sentencing) Act 1988 (SA) s10, s10C, s18A, s30; Criminal Law Consolidation Act 1935 (SA) s85, s134; Summary Offences Act 1953 (SA) s41; Youth Offenders Act 1993 (SA); Correctional Services Act 1982 (SA) s37A, s66, referred to.
R v Colson [1999] SASC 184, (1999) 73 SASR 407, applied.
R v Tilley [2010] SASCFC 73; R v Jamieson (1988) 50 SASR 130, discussed.
Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; Attorney-General v Tichy (1982) 30 SASR 84; R v Dang [2015] SASCFC 89; R v Place [2002] SASC 101, (2002) 81 SASR 395; R v P, NJ (No 4) [2008] SASC 97, (2008) 183 A Crim R 461; R v Newman (2004) 145 A Crim R 361; R v Malesevic [1999] SASC 321, (1999) 204 LSJS 32; Kells v Police [2007] SASC 224; R v Penny [2012] SASCFC 16, considered.

R v FRANCESCHINI
[2015] SASCFC 116

Court of Criminal Appeal:   Nicholson, Bampton and Lovell JJ

NICHOLSON J.   

Introduction

  1. On 23 April 2015, the appellant…

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R v Franceschini [2015] SASCFC 116
Case
[2015] SASCFC 116
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CaseChat Overview and Summary

In R v Franceschini, the Court of Criminal Appeal of South Australia considered an appeal against sentences imposed on the appellant. The appellant had been found guilty by a jury of theft and arson concerning a stolen truck. In addition, he pleaded guilty to two further offences, theft by receiving and unlawful possession, which were dealt with at the same time as the sentencing for the jury verdicts.

The legal issues before the Court of Criminal Appeal included whether the sentencing judge erred in the application of the totality principle when imposing cumulative sentences, and whether the commencement date of the sentences was correctly determined. The appeal also involved a question of law regarding the sentencing orders.

The Court applied the principle of totality, which requires a sentencing judge to consider the overall sentence imposed for multiple offences to ensure it is just and appropriate, rather than merely adding up individual sentences. The Court also considered the statutory provisions governing the commencement of sentences. The reasoning focused on ensuring that the aggregate sentence reflected the seriousness of all the offences committed by the appellant and was not unduly harsh or lenient.

The Court of Criminal Appeal allowed the appeal in part, varying the sentence imposed by the sentencing judge. The orders made by the Court adjusted the commencement date of the sentences and applied the totality principle to arrive at a revised aggregate sentence.

Orders

Orders of the court

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Background

Background to the litigation

A Judge of this Court granted permission to appeal with respect to grounds one and two and referred ground three to the Court of Criminal Appeal to be heard at the same time as the appeal on grounds one and two. Ground three raises a question of law and does not require permission to appeal. Background On 6 March 2015, the appellant was found guilty by a jury of one count of theft and one count of arson in relation to a truck stolen from a truck depot on 11 March 2013. At the time of sentencing, two additional offences, which had been laid on Information in the Magistrates Court, were called up to be dealt with at the same time. The appellant pleaded guilty to these two offences; one count of theft, by way of receiving, and one count of unlawful possession. Discounts of 10 per cent and 40 per cent, respectively, were allowed, apparently in accordance with the statutory regime which now governs discounts for pleas of guilty.[6] The appellant does not complain in either of these respects. [6] Section 10C of the Criminal Law (Sentencing) Act 1988. Late at night on 11 March 2013, the appellant and his brother attended at a truck depot in the northern suburbs of Adelaide. They cut through a wire perimeter fence and broke into and started a truck. The truck was used to smash open the front depot gate. It was driven to a location where the appellant’s associates removed and retained its hydraulic tailgate, said to have been worth between $15,000 and $16,000. The truck was then driven a short distance to another location where the appellant and his brother set it alight and destroyed it. The truck was valued at between $90,000 and $100,000. The tailgate was located by police and later returned to its owner. Plainly, these offences of theft and arson had been premeditated and planned. A few months earlier, in December 2012, a Toyota LandCruiser was stolen from outside its owner’s home in North Adelaide. The appellant received this vehicle and used it for his own purposes. On 8 March 2013, the appellant was photographed driving the vehicle by a fixed speed camera. It is not in contest that he had been driving the vehicle prior to that date. The LandCruiser was used by the appellant and his brother on the night of the truck theft as a second vehicle to provide transport to the truck depot and after the truck was destroyed. The LandCruiser also was later set alight and destroyed,[7] although the appellant has not been prosecuted in relation to that matter. It was the receiving by the appellant of the LandCruiser that gave rise to the second offence of theft. [7] The burnt out LandCruiser was located by police in April 2013. In April 2013, another Toyota LandCruiser was stolen from an address in another Adelaide suburb. The vehicle was located by the police in a garage and whilst in the process of being “rebirthed” in order to fit the description and registration details of a vehicle registered to the appellant’s brother. On 20 May 2013, police located items at the appellant’s home which had been in or on this LandCruiser at the time it was stolen, namely, roof racks, wheels and a bag of tools. In these circumstances, the appellant pleaded guilty to the offence of unlawful possession. The sentence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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