R v FULLER
[2004] SASC 422
•13 December 2004
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 422Criminal
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 plea of guilty; and a further ground which was substituted on the hearing of the application.
The further ground reads:
“4.The appellant’s circumstances since his imprisonment have materially changed due to a serious assault affecting his mental and physical wellbeing, which matters go to the question of his rehabilitation, treatment while in gaol and which matters were not known to the sentencing judge at the time of pronouncing sentence.”
That further ground is the subject of an affidavit which was put before the court, in which the applicant refers to the circumstances of an assault which he alleges took place on 14 October 2004 while he was at Yatala Labour Prison.
As to that ground, in my view, having regard to the decision of the Court of Criminal Appeal in R v C,[2] the ground is not reasonably arguable.
[2] [2004] SASC 244.
As to the remaining grounds, I have reached the firm conclusion that there is no reasonable prospect of success.
It seems to me that the sentence was well within the appropriate limits, having regard to the circumstances of the offence and the personal circumstances of the applicant.
The notice of appeal and the arguments put forward in support of it by Mr Mancini do not identify any arguable error on the part of the sentencing judge which deserves the attention of the Court of Criminal Appeal.
The application for leave to appeal is dismissed.