R v Gale

Case [1999] SASC 309 20 July 1999

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R v GALE
[1999] SASC 309

Court of Criminal Appeal: Doyle CJ, Bleby and Wicks JJ

DOYLE CJ: I agree.
BLEBY J. (ex tempore) This is an appeal against sentence imposed by a judge of the District Court. The appellant pleaded guilty to three counts of receiving and one count of unlawful possession. He was sentenced to 27 months’ imprisonment with a non-parole period of 15 months, both running from 9 April 1999, the date of the sentence. It was a single sentence for all counts, imposed under s 18A of the Criminal Law (Sentencing) Act 1988.
The particular offences were as follows:

Counts 1, 2 and 3 were each counts of receiving books knowing them to have been stolen. Each offence took place between 1 November 1996 and 28 February 1997. Count 1 involved two books to the value of $20. Count 2 involved an unspecified number of books to the value of $100. Count 3 involved two books to the value of $20.

The maximum penalty for the offence of receiving is eight years’ imprisonment.
Count 4 was a count of unlawful possession of a number of items reasonably suspected of having been stolen or obtained by unlawful means. On 25 March 1997 the appellant had in his possession approximately 1,800 books, a quilt cover, seven sheet sets, two pillow cases, two wallets, three boxes of aftershave and two boxes of perfume, all of which were reasonably suspected of having been stolen or obtained by unlawful means. The goods were valued at between $8000 and $9000.
The maximum penalty for that offence is a period of two years’ imprisonment.
The matters were originally set for hearing in the Adelaide Magistrates’ Court. About a week before the trial was due to commence the appellant elected to have the matter tried by a jury in the District Court. He was arraigned in the District Court on 25 May 1998 and entered a plea of not guilty. The initial information alleged the involvement of a much greater quantity of books, approximately 3,600. The appellant requested that these books be itemised. This caused some delay. The list of books was provided on 8 July 1998.
There were a number of directions hearings after this date and eventually the appellant indicated that the matter needed to go to trial because no agreement could be reached.
The appellant entered a plea of guilty on 6 April 1999, the day before the date set down for the trial. It was therefore a very late plea but after much time seems to have been taken identifying particulars of the property concerned, but with overtones of seeking to delay the inevitable legal process. The sentencing judge considered that the pleas could have been negotiated much earlier and on the original information. The court resources were set aside for a six day trial and they were wasted.
I agree with the view expressed by the learned sentencing judge. It was a complex issue with a large number of…

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 Gale [1999] SASC 309
Case: [1999] SASC 309
Decision Date: 20 July 1999

CaseChat Overview and Summary

In the case of R v Gale, the appellant was convicted of receiving stolen books and unlawful possession of items suspected to be stolen. The appellant appealed against the sentence imposed by a judge of the District Court, arguing that the sentence was manifestly excessive. The Court of Criminal Appeal was tasked with reviewing the sentence imposed on the appellant and determining whether it was appropriate and fair in light of the legal principles and guidelines.

The key legal issue before the Court was whether the sentencing judge erred in imposing a single sentence for multiple offences under s 18A of the Criminal Law (Sentencing) Act 1988. The Court had to consider whether the sentencing judge properly assessed the individual charges and their severity before imposing a single sentence. The Court also had to determine if the sentence imposed was manifestly excessive, taking into account the totality of the offending and the appellant's background.

The Court found that the sentencing judge had not followed the recommended approach of considering separate sentences for each charge before imposing a single sentence. The Court considered that the sentencing judge had allowed himself to be overwhelmed by the appellant's total criminality and had failed to give sufficient weight to the nature and seriousness of the individual charges. The Court held that the sentencing judge erred by not undertaking the process of considering separate sentences and that the global penalty was manifestly excessive. The Court concluded that a sentence of 18 months' imprisonment with a non-parole period of 10 months was more appropriate.

The Court of Criminal Appeal allowed the appeal, set aside the sentence imposed by the District Court, and substituted a fresh sentence of 18 months' imprisonment with a non-parole period of 10 months. The Court directed that the head sentence and non-parole period run from 9 April 1999. The Court found that the original sentence was manifestly excessive and that the appellant deserved a more proportionate penalty that took into account the seriousness of the individual charges and the totality of the offending.

Orders