R v Gannon

Case [2009] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GANNON

[2009] SASC 73

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Kelly)

24 March 2009

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE

Appeal against severity of sentence - appellant pleaded guilty to robbery and interfering with a motor vehicle - appellant also convicted of property damage - suspended sentences imposed - released on good behaviour bonds - breach of conditions of bonds - whether failure to comply with bonds should be excused - whether special circumstances existed for reducing period of suspended sentence for breaching offences - whether marked disproportion between seriousness of offence constituting breach and sentence of imprisonment activated - commencement of disqualification of licence for the purpose of s 169B of the Road Traffic Act 1961 (SA).

Held:  If the Court concludes that a breach of bond should not be excused, then the Court is required to consider whether special circumstances exist to reduce the period of suspended sentence - sentencing Judge failed to have regard to any significant change in circumstances since sentencing which, had they existed at time of sentencing, would have resulted in a reduced sentence - appeal allowed - sentence set aside - failure to comply with bond with respect to robbery too serious to excuse - failure to comply with bond with respect to property damage excused - sentencing Judge failed to have adequate regard to disproportionate sentence of each breaching offence - sentence reduced - term of disqualification of licence to commence after the appellant is released from custody.

Criminal Law Consolidation Act 1935 (SA) s 86A; Criminal Law (Sentencing) Act 1988 (SA) s 58, s 58(3), s 58(4); Offenders Probation Act 1913 (SA); Road Traffic Act 1961 (SA) s 169B; Summary Offences Act 1953 (SA) s 62A(1), referred to.
R v Buckman (1987) SASR 303, applied.
Coulthard v Kennedy (1992) 60 A Crim R 415, considered.

R v GANNON
[2009] SASC 73

Court of Criminal Appeal:  Doyle CJ, Sulan and Kelly JJ

  1. DOYLE CJ:          I agree with the orders proposed by Sulan J, and with his reasons for making those orders.  There is nothing that I wish to add.

  2. SULAN J: On 30 September 2008, the appellant was sentenced by a District Court Judge to a total sentence of five years and ten months’ imprisonment.  The sentencing Judge imposed a non-parole period of 24 months.  The appellant appeals against the severity of the sentence.

  3. On 11 March 2008, the appellant pleaded guilty to robbery and interfering with a motor vehicle, both offences having been committed on 8 April 2006. 

  4. The appellant also acknowledged a breach of a bond entered…

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AGLC
R v Gannon [2009] SASC 73
Case
[2009] SASC 73
Decision Date

CaseChat Overview and Summary

In the case of R v Gannon, the appellant appealed against the severity of his sentence, which was imposed after he pleaded guilty to robbery, interfering with a motor vehicle, and property damage. The appellant was also convicted of breaching the conditions of two separate good behaviour bonds. The appeal was heard by the Supreme Court of South Australia. The primary legal issues before the court were whether the failure to comply with the conditions of the bonds should be excused, whether special circumstances existed for reducing the period of the suspended sentence for the breaching offences, and whether there was a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment activated. Additionally, the court had to determine the commencement of the disqualification of the appellant's licence under s 169B of the Road Traffic Act 1961 (SA).

The court found that while the breach of the bond in relation to the robbery was too serious to excuse, the sentencing Judge failed to consider whether special circumstances existed to reduce the period of the suspended sentence. The court held that special circumstances did exist, as the appellant had made significant changes since the sentencing which, if considered at the time, would have resulted in a reduced sentence. The appeal was allowed, the sentence was set aside, and the failure to comply with the bond with respect to the robbery was deemed too serious to excuse. However, the failure to comply with the bond with respect to the property damage was excused. The court also found that the sentencing Judge had not given adequate regard to the disproportionate sentence of each breaching offence. Consequently, the sentence was reduced, and the term of the disqualification of the appellant's licence was to commence after the appellant was released from custody.

The court ordered that the appellant's sentence be reduced to a total of three years and six months’ imprisonment, with a non-parole period of 18 months. The sentence of one month for the breach of bond entered on 8 February was to be served concurrently with the sentences imposed. The appellant was also disqualified from holding or obtaining a driver’s licence for 12 months, with the period of disqualification to commence after his release from custody. The court's decision was affirmed by Kelly J, who agreed with the reasons provided by Sulan J and the proposed orders.

Orders

Orders of the court

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Background

Background to the litigation

The appellant also pleaded guilty to a breach of bond entered into on 8 February 2007, when he was imprisoned for one month for failing to comply with a bail agreement, the sentence being suspended for 12 months on condition that he be of good behaviour. The appellant also failed to undertake community service which he was required to undertake for failure to pay fines.The facts The appellant had suffered from a serious drug and alcohol abuse problem from an early age. He first consumed alcohol and drugs when he was about 13 years’ old. He had undergone a drug and alcohol program when he was about 21 years of age, as a result of which he had not consumed alcohol for two years. He had been drug-free for approximately ten months prior to the offence. He was advised by the person in charge of his rehabilitation that he might be able to become a social alcohol user. However, when he began to drink alcohol, he again relapsed into alcohol abuse. On the night in question, he had attended the city with friends to celebrate with a friend who had received a large worker’s compensation payment. He had not frequented Hindley Street for a number of years. He became intoxicated and he and his friends continued to drink at various hotels. He was severely intoxicated when he and his friends decided to go to Glenelg for something to eat. Nothing was open at Glenelg so they hailed a taxi and directed the taxi driver to a pizza place which they believed would be open. It appeared to the appellant that the taxi driver was taking a longer route than necessary. According to the taxi driver, he turned from Anzac Highway into Cross Road on the instructions of the three occupants. The appellant, who was in the front, told him to stop. The appellant was agitated. The two men, who had been seated in the rear, got out of the taxi. The appellant grabbed the victim’s coin holder and got out of the car. The driver alighted from the car and asked for his coin holder back. The appellant then punched him and kicked him. The taxi driver ran away. The appellant put the car into gear and allowed it to roll away which resulted in it hitting a fence and being damaged. The police were called. They found the appellant hiding in premises not far from where the incident occurred. There was no dispute that the offence was an impulsive act. The appellant had no need for money. His conduct can only be explained as being stupid and influenced by the alcohol he had consumed. After the offence, when he was released on bail, the appellant returned to work. He continued in employment until he was sentenced. He has paid for the damage he had caused to the vehicle. A psychological report of Mr Balfour, a forensic psychologist, was provided to the sentencing Judge. Mr Balfour observed that the appellant had an unstable family background and that his childhood had been difficult. Mr Balfour was of the view that the appellant’s offending behaviour was largely a by-product of his history of drug and alcohol abuse and vulnerability to negative peer pressure. He concluded that, at the time of the offence, the appellant would have been disinhibited in his behaviour and impaired in his social judgment. His offending was impulsive and involved little premeditation. He observed that, since the offence, the appellant had actively disassociated himself from negative peer pressure, and that he had determined to stop consuming alcohol and drugs. Mr Balfour considered that the appellant’s drug problems could be treated. The appellant is motivated to curtail his alcohol consumption. He has insight into his problems, and has taken steps to avoid situations which may lead to further offending. Mr Balfour was of the view that a structured rehabilitation program would benefit the appellant.The sentence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Judge was correct in concluding that the offence of robbery was too serious to excuse the breach. However, the Judge failed to consider whether special circumstances exist to reduce that sentence. For the reasons given, I am satisfied that, pursuant to s 58(4), special circumstances exist to reduce the term of the sentence from ten months to six months’ imprisonment. Conclusion I would allow the appeal, set aside the sentence, and vary the sentence imposed by the trial Judge by ordering that the failure to comply with the conditions of the bond entered into on 24 August 2006 be excused. As to the sentence of ten months’ imprisonment, I would reduce it to six months’ imprisonment, to be served cumulatively upon the sentence of three years’ imprisonment for the offence of robbery. That results in a total sentence of three years and six months’ imprisonment. The sentence is to commence on 30 September 2008. I would impose a non-parole period of 18 months’ imprisonment. As to the sentence of one month for the breach of bond entered into on 8 February, the sentence is to be served concurrently with the sentences I have imposed. I would disqualify the appellant from holding or obtaining a driver’s licence for 12 months. Section 169B of the Road Traffic Act 1961 provides that the period of disqualification commences at the date of this order and ends at a time calculated as if the period of disqualification commenced on the appellant’s release from the period of imprisonment he is to serve. It follows that the period of disqualification will end 12 months after the appellant is released from custody. KELLY J: I agree that the appeal should be allowed for the reasons given by Sulan J. I agree with the orders that he proposes.

Ratio Decidendi

Legal Principle Established

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