R v FULLER - [2004] SASC 422

Supreme Court of South Australia
(Criminal: Application)
R v FULLER
Reasons for Decision of The Honourable Justice Perry (ex tempore)
13 December 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
The applicant sought leave to appeal against a sentence of 5 years and 4 months imprisonment with a non-parole period of 2 years and 6 months imposed in the District Court following his plea of guilty to aggravated robbery - the applicant had entered a service station and after threatening the attendant with a screw driver, made off with $340 - while in gaol serving the sentence, the applicant was the victim of a serious assault by another prisoner - as well as claiming that the sentence was manifestly excessive, he contended that his treatment in gaol warranted a review of his sentence - held that there was no arguable error by the sentencing judge, and the sentence was well within appropriate limits - the subsequent assault in gaol could not provide a reason to revisit the sentence by way of an appeal - application dismissed.
R v Place (2002) 81 SASR 395; R v C [2004] SASC 244, considered.

R v FULLER
[2004] SASC 422
Criminal

PERRY J. (ex tempore) In this matter the applicant seeks leave to appeal against the sentence imposed upon him in the District Court following his plea of guilty to a charge of aggravated robbery.
The circumstances of the offence were that on 5 October 2003 the applicant entered a BP service station, grabbed the attendant’s hand, threatened him with a screwdriver and after demanding money, made off with about $340.
The applicant has a very long record indeed of previous offences. The sentencing judge described his offender history as “abysmal”.
During the course of his sentencing remarks the sentencing judge referred to the decision of the Court of Criminal Appeal in Place.[1] After doing so, he said that he considered the appropriate starting point for the sentence was 7 years imprisonment. On account of the applicant’s plea of guilty, he reduced that to a head sentence of 5 years and 4 months. After indicating that he would fix a lower than usual non-parole period, he fixed a non-parole period of 2 years and 6 months.
[1] (2002) 81 SASR 395.
In the notice of appeal as originally filed, the applicant asserted that the sentencing judge had imposed a sentence which was manifestly excessive and had failed to have sufficient regard to the appellant’s circumstances, restitution and other matters.
On the hearing of the application, I gave leave to Mr Mancini, who appeared for the applicant, to add further grounds of appeal.
The further grounds complain that the starting point of 7 years was inappropriate; that a greater allowance than approximately 25 per cent should have been allowed by way of a discount for the…

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 FULLER

Details

AGLC: R v FULLER [2004] SASC 422
Case: [2004] SASC 422
Decision Date: 13 December 2004

CaseChat Overview and Summary

In the matter of R v Fuller, the applicant sought leave to appeal against a sentence imposed by the District Court, following his guilty plea to aggravated robbery. The applicant had threatened a service station attendant with a screwdriver and stolen $340. The court handed down a sentence of five years and four months imprisonment, with a non-parole period of two years and six months. The applicant's appeal hinged on two main contentions: firstly, that the sentence was manifestly excessive, and secondly, that his treatment in gaol warranted a review of his sentence. The applicant had been the victim of a serious assault by another prisoner while serving his sentence.

The legal issues for the court to decide were whether there was an arguable error in the sentence imposed by the District Court and whether the applicant's treatment in gaol could be a ground for revisiting his sentence on appeal. The court needed to consider if the sentence was within the appropriate limits and whether the events in gaol could provide grounds for altering the sentence through an appeal process.

The court found that the sentencing judge did not make any arguable error, and the sentence was well within appropriate limits. The court further held that the assault the applicant suffered in gaol could not provide a reason to revisit the sentence by way of an appeal. Consequently, the applicant's application for leave to appeal was dismissed.

Orders