R v Greenwood - [2000] SASC 204

R v GREENWOOD
[2000] SASC 204

Court of Criminal Appeal: Olsson, Wicks & Gray JJ

OLSSON J I agree with the reasons expressed by Wicks J and the orders which he proposes.
WICKS J This is an appeal against sentence. The appellant, along with Cory Matthew Dettman, Mark Andrew Sandery and Timothy Michael Taylor, was found guilty on his own confession of conspiracy to break and enter premises unknown and to steal property therein. Dettman was also found guilty on his own confession of two counts of possessing firearms without holding a firearms licence authorising their possession contrary to s 11 of the Firearms Act 1935. He was also convicted of one count of carrying an offensive weapon namely a replica .45 calibre pistol without lawful excuse contrary to s 15(1)(a) of the Summary Offences Act 1953. Conspiracy is an offence of common law. No maximum penalty has been prescribed.
The substantive offence of breaking, entering and stealing carries a maximum penalty of eight years and it would be unlikely that the penalty for conspiracy to commit such an offence would be any greater.
On 26 February 1999 a motor car carrying the appellant and his co-conspirators was under surveillance by the police. It was stopped and the contents were found to include balaclavas, changes of clothes, police scanners, loaded firearms, spare ammunition, gloves, beanies and other potential items of disguise, tools such as screwdrivers, pliers, a block splitter and a hammer.
The conspiracy was to break into a shed in the garden of the dwelling house occupied by what was described as a motorbike gang at a time when the occupants were absent and to steal cannabis plants thought to be growing in the shed.
It appears that it was agreed at the outset that firearms would not be used but that Dettman, unknown to Taylor and the appellant, took firearms with him contrary to the plan agreed upon.
The learned sentencing judge took as a standard for a simple breaking, entering and larceny in respect of an offender with a bad record (applicable in the case of each defendant in this case) a sentence of imprisonment in the range of two years and six months to two years and nine months. Such a term would be liable to reduction in the case of a plea of guilty or other mitigating circumstances.
At the time of the offence, Dettman was 26 years of age. He has been in custody since his arrest on 26 February 1999.
Dettman was convicted of armed robbery (not associated in any way with the present proceedings) on 17 November 1999 and sentenced to imprisonment for eight years and four months with a non-parole period of five years and four months. He has a bad criminal record extending from offences committed while a juvenile as far back as 1987. He pleaded guilty to the charge of conspiracy the subject of this appeal at the earliest opportunity.
The learned sentencing judge indicated that but for the…

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.

Continue reading R v Greenwood

Details

AGLC: R v Greenwood [2000] SASC 204
Case: [2000] SASC 204
Decision Date: 30 June 2000

CaseChat Overview and Summary

This case, R v Greenwood, involved an appeal against the sentence handed down by the trial judge. The appellant, along with three others, was found guilty of conspiracy to break and enter premises unknown and to steal property therein. Cory Matthew Dettman was also found guilty of possessing firearms without a licence and carrying an offensive weapon. The appeal was against the sentence imposed on the appellant by the sentencing judge.

The legal issues in this case were twofold. Firstly, whether the sentencing judge erred in failing to set a non-parole period for the appellant. Secondly, whether the sentence imposed by the sentencing judge on the appellant was manifestly disproportionate in relation to the sentence imposed on the co-accused, such that it gave rise to a justifiable sense of grievance.

The court found that the sentencing judge was indeed in error for failing to set a non-parole period for the appellant, particularly given the period already served in custody. The court also noted that the principal issue in this case was the failure to set a non-parole period, and once that was addressed, the appellant's complaint would cease to be justifiable. The court allowed the appeal and set a non-parole period for the appellant.

The final orders of the court were to allow the appeal and set a non-parole period for the appellant, commencing on 7 April 2000 and expiring on 4 August 2000.

Orders