R v Hartley - [2008] SASC 228

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HARTLEY
[2008] SASC 228
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice David)
22 August 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - FACTUAL BASIS FOR SENTENCE
Appeal against sentence - appellant pleaded guilty to multiple dishonesty offences - disputed facts determined against appellant after hearing - whether judge erred in sentencing appellant on the basis of the disputed facts - consideration of principles governing the taking into account of conduct amounting to a separate crime which could have been, but was not, charged - whether sentence manifestly excessive. Held: error in taking into account disputed facts - sentence manifestly excessive considering the circumstances of the offending - appeal allowed - appellant re-sentenced.
Criminal Law Consolidation Act 1935 (SA), s 139, s 195; Criminal Law (Sentencing) Act 1988 (SA), s 30(2), referred to.
R v Austin (1985) 121 LSJS 181; R v Colson (1999) 73 SASR 407; R v Jamieson (1988) 50 SASR 130; R v P, NJ (No 4) [2008] SASC 97; R v Teremoana (1990) 54 SASR 30, applied.

R v HARTLEY
[2008] SASC 228
Court of Criminal Appeal: Duggan, Vanstone and David JJ

DUGGAN J: I would allow the appeal.
I agree with the orders proposed by Vanstone J and her reasons for decision.
VANSTONE J: Michael Vivian Hartley appeals against a sentence imposed in the District Court for six counts of false pretences, eight counts of deception and one offence of attempted deception. The offences occurred over the period April 2003 to March 2005. The total amount of money obtained by the appellant was $116,610. The single sentence imposed was one of six years, six months and two weeks imprisonment, with a non-parole period of four years. Prior to sentence the appellant had spent periods totalling one year in custody in respect of these offences. Therefore the effective non-parole period was five years.
All the offences showed a similar pattern. The victims were breeders of native or exotic birds, or plant nursery operators or, in one instance, a landscape gardener. In most cases the appellant contacted the victim at the victim’s place of business. In others the appellant either placed an advertisement on the internet, or responded to an advertisement placed by a victim. An agreement was struck in each instance for the appellant to provide either birds of a particular type, or specified plants. The victims would either pay the appellant in advance, or provide a deposit into the appellant’s bank account. Later the appellant would make an excuse for not having delivered the birds or plants. The greatest amount of money involved in any one offence was $19,700 (count…

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 Hartley

Details

AGLC: R v Hartley [2008] SASC 228
Case: [2008] SASC 228
Decision Date: 22 August 2008

CaseChat Overview and Summary

The appellant, Hartley, appealed against his sentence following a guilty plea to multiple counts of dishonesty. The primary issue before the court was whether the sentencing judge erred in considering certain disputed facts that were determined against the appellant. The court was also required to determine if the sentence was manifestly excessive given the circumstances of the offending.

The court found that the sentencing judge had erred by taking into account facts that were disputed and not proven beyond reasonable doubt. The principles governing the use of such facts in sentencing were carefully considered, leading the court to conclude that the sentence was manifestly excessive. The court highlighted that the sentence did not adequately reflect the mitigating factors present in the case and was disproportionate to the nature and circumstances of the offending.

Accordingly, the appeal was allowed, and the appellant was re-sentenced. The court emphasised the importance of ensuring that sentences are proportionate and reflect the true nature of the offending, taking into account all relevant mitigating and aggravating factors. The decision underscores the necessity for judicial officers to carefully consider the factual basis for sentences and to ensure that any sentence imposed is just and appropriate in all the circumstances.

Orders