(The Honourable Justice Vanstone, The Honourable Justice Stanley and The Honourable Auxiliary Justice Chivell)
25 May 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS
Application for permission to appeal against sentence. Applicant pleaded guilty to dishonestly manipulating an automated teller machine (five counts); contravening a bail agreement (one count); providing false information in an application for release on bail (two counts); serious criminal trespass in a non-residential building (one count); serious criminal trespass in a residential building (five counts); and theft (six counts).
Offences committed in 2006 and 2007. Applicant absconded to New South Wales, then to Western Australia. Applicant continued to offend interstate. Applicant has many previous convictions for similar offending. Applicant had longstanding addiction to methylamphetamine.
Applicant was sentenced to a total of four years 10 months imprisonment, to commence at the expiration of a period of unexpired parole of six months 12 days. A non-parole period of two years was set. Sentence and non-parole to commence on 23 January 2017.
Whether non-parole period manifestly excessive having regard to efforts made by the applicant to rehabilitate himself in custody, his troubled background, the support from his family, his contrition and other factors.
Held per Chivell AJ (Vanstone and Stanley JJ agreeing): Permission to appeal refused.
Court of Criminal Appeal: Vanstone & Stanley JJ & Chivell AJ
VANSTONE J: I would refuse permission to appeal for the reasons given by Chivell AJ.
STANLEY J: I would refuse permission to appeal. I agree with the reasons of Chivell AJ.
CHIVELL AJ:
Mr Glover seeks permission to appeal against a sentence imposed on him in the District Court on 1 March 2017. Permission was refused by Kelly J on 10 April 2017. The application was referred to this Court pursuant to s 48(4) of the Supreme Court Act 1935 and Supreme Court Criminal Rule 120.
Mr Glover had pleaded guilty to:
·dishonestly manipulating an automated teller machine (five counts) on 17 July 2006. The maximum penalty for that offence is imprisonment for 10 years;
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 Glover [2017] SASCFC 56
Case
[2017] SASCFC 56
Decision Date
CaseChat Overview and Summary
The matter of *R v Glover* concerned an appeal against conviction and sentence. The appellant, Glover, had been convicted of a number of offences, including aggravated robbery and assault occasioning actual bodily harm. The Crown sought to appeal against the sentence imposed by the sentencing judge. The appeal was heard by Vanstone and Stanley JJ, with Chivell AJ.
The primary legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in principle by imposing a sentence that was manifestly inadequate, thereby allowing the Crown's appeal against sentence. A secondary issue, arising from the appellant's cross-appeal, concerned whether the sentencing judge had erred in principle by failing to give sufficient weight to the mitigating factors presented on behalf of the appellant, particularly his youth and the circumstances of his upbringing.
The Court considered the principles of sentencing for aggravated robbery and assault occasioning actual bodily harm, noting the need to reflect the seriousness of the offences, the need for general and specific deterrence, and the importance of rehabilitation. The Court analysed the sentencing remarks of the trial judge and the evidence presented regarding the appellant's background and remorse. The Court ultimately found that while the sentencing judge had taken into account relevant factors, the sentence imposed was not demonstrably outside the range of a reasonable sentence, and therefore the Crown's appeal against sentence was dismissed. The appellant's cross-appeal was also dismissed.