R v Gibbs

Case [2004] SASC 187

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GIBBS

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Mullighan)

2 July 2004

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - MISCELLANEOUS MATTERS

DISTRICT COURT JUDGE EXERCISING POWERS OF MAGISTRATE

The appellant pleaded guilty in the District Court to multiple counts of false pretences and cognate offences committed over a period of about 20 months - many of the matters were summary matters which had been pending in the Magistrates Court, and were referred to the District Court to be dealt with together with a charge prosecuted on information for which she had been committed for trial in the District Court - the appellant was sentenced to a single term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 3 months - held on appeal that when a District Court judge exercises the jurisdiction powers or functions of a magistrate, he or she is not bound by s 19 of the Criminal Law (Sentencing) Act 1988 which limits the power of the Magistrates Court to impose a sentence of imprisonment not exceeding 2 years.

Criminal Law (Sentencing) Act 1988 s 18A and s 19; Magistrates Act 1983 s 22; Judicial Administration (Auxiliary Appointment and Powers) Act 1988 s 5(1), referred to.
Hunt v Police (unreported) Lander J, 4 May 2001, judgment No [20, considered.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE

SENTENCING FOR MULTIPLE OFFENCES

The appellant was sentenced in the District Court on multiple charges of false pretences and cognate offences - she was sentenced to a single term of imprisonment imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, of 4 years and 6 months with a non-parole period of 2 years and 3 months - on appeal, the sentence was reduced (by a majority) to 2 years with a non-parole period of 1 year - discussion of principles to be applied in sentencing for multiple offences - appeal allowed.

R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Nylander (2003) 228 LSJS 39; R v Caplikas (2002) 223 LSJS 46; R v Creed (1985) 37 SASR 566; R v Place (2002) 81 SASR 395, considered.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

APPELLATE PROCEDURE

The appellant was sentenced in the District Court on multiple charges, some of which had been prosecuted on complaint in the Magistrates Court and were referred to the District Court to be dealt with at the same time as charges prosecuted on information to which the appellant had been committed for sentence to the District Court - a single sentence on all…

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AGLC
R v Gibbs [2004] SASC 187
Case
[2004] SASC 187
Decision Date

CaseChat Overview and Summary

In the case of R v Gibbs, the appellant was convicted of multiple criminal offences and appealed against the sentence imposed by the District Court. The appeal was heard by the Supreme Court of South Australia. The central issue before the court was the appropriate sentence to be imposed on the appellant, taking into account the nature and duration of the offending, the plea of guilty, and the appellant's personal circumstances. The court was required to consider the principles of sentencing, particularly the need to ensure proportionality and avoid double punishment for earlier crimes when multiple offences have been committed over an extended period.

The court analysed the legal framework governing the sentencing process, including the interaction between sections 352(1) of the Criminal Law Consolidation Act and section 43 of the District Court Act. The judges examined the appellant's background, which included a history of sexual abuse, limited education, and unstable employment. The court also considered the appellant's three young children and the impact of her imprisonment on them. The judges debated the appropriate weight to give to the appellant's personal circumstances and the principle that greater sentences may be justified for later offences when there has been a course of criminal conduct.

The majority of the court concluded that the sentence imposed by the District Court was insufficient and did not adequately reflect the objective seriousness of the offences and the lengthy period over which they were committed. The court found that the lowest acceptable sentence should be 3 years imprisonment with a non-parole period of 18 months. The judges acknowledged the appellant's difficult background but emphasised the need for deterrence and the protection of the community. The court allowed the appeal and quashed the sentence, ordering that a new sentence be imposed by the District Court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ PERRY J MULLIGHAN J
As for the observations by Lander J as to the interaction of s 352(1) of the CLCA and s 43 of the District Court Act, I regard those observations as being somewhat ambiguous, for the reasons which I have given, and it is open to this Court to reconsider the matter in order to clarify the construction which is to be preferred.Conclusion Returning to the present case, I would allow the appeal and quash the sentence under appeal. Since dictating the above reasons, I have had the very considerable benefit of perusing the draft reasons for judgment of Mullighan J, and of Doyle CJ. My consideration of the reasons of Mullighan J has led me to the view that the reduction in the sentence under appeal suggested by me above, is perhaps less than is justified. However, notwithstanding the matters of background highlighted by Mullighan J, having regard to the objective seriousness of the offending and the lengthy period over which it was committed, in my view, the lowest sentence which should be countenanced is 3 years imprisonment with a non-parole period of 18 months. Given the view of the majority, it is unnecessary for me to comment further as to the sentence which, in my view, should be substituted. The issues raised on this appeal are discussed by Perry J. I agree with his conclusions except in relation to the sentence which should now be imposed and to the matters which I now mention. The observations in R v Place (2002) 81 SASR 395 that, generally speaking, there is justification to impose greater sentences for later offences, where multiple offences have been committed over a period of time, must be considered along with the observations of King CJ in R v McInerney (1986) 42 SASR 111 at 113. It is important to ensure that the offender is not again punished for earlier crimes. In the present case this principle is of particular importance. With the possible exception of the first offence of unlawful possession, the appellant was involved in a course of criminal conduct commencing probably early April 2002 and ending nearly eight months later. It may be appropriate to say that the unlawful possession offence, which I have mentioned, falls within that course of conduct. There was a spate of false pretences and attempted false pretences offences in April, May and June 2002 and again in September and October 2002. In my view, the correct approach is to first consider separately the appropriate sentences for the first offence of unlawful possession and then the two courses of criminal conduct later in the year also including the further offence of unlawful possession between May and December 2002. Having done so, adjustments should then be made for proportionality, the plea of guilty and any other matters of significance. The circumstances of the offending and the appellant must be considered. She was aged 32 years during most of this offending. She has three children aged 13 years, 8 years and 6 years. The appellant has had a difficult life. As a young child she was sexually abused by her father, in consequence of which he was imprisoned. She left school at the age of 15 years and had limited employment. She has had only one significant personal relationship which was with the father of her children which lasted for about 10 years. She became pregnant with her first child at the age of 19 years. This child does not live with her. The father of that child is deceased. About five years ago, the appellant and her partner lived and worked in Western Australia until their employment ceased. They returned to South Australia.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, PERRY J, MULLIGHAN J

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