R v HAYMAN - [2019] SASCFC 72

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HAYMAN
[2019] SASCFC 72
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Justice Hinton)
28 June 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS
This is an appeal against sentence. The appellant was sentenced for offences committed on 27 November 2017 and 2 December 2017. The 27 November 2017 offending consisted of serious criminal trespass and theft committed when the appellant entered a storage container and took from it a trailer, some paint and some power tools. For this particular offending the appellant was sentenced to imprisonment for three years and four months reduced to two years and four months on account of his pleas of guilty. The sentencing Judge ordered that the sentence for the 27 November 2017 offending be served cumulative on the sentence imposed for the 2 December 2017 offending resulting in an overall sentence of imprisonment for three years and 10 months, in relation to which a non-parole period of two years and four months was fixed.
The appellant committed the offending of 27 November 2017 in company with a Mr Oldfield. Mr Oldfield was also charged but not only with serious criminal trespass and theft. He was also charged with two counts of property damage as a consequence of damage he did to the container. For his 27 November 2017 offending and nine other offences committed on various days, Mr Oldfield was sentenced to imprisonment for 30 months reduced to 21 months on account of his pleas of guilty.
The appellant appealed on the grounds that, applying the parity principle, the difference between his sentence for the 27 November 2017 offending and that of Mr Oldfield’s could not be justified, warranting intervention by this Court to reduce his sentence.
Held: per the Court, allowing the appeal, the difference between the sentence imposed on the appellant for the 27 November 2017 offending and that imposed on Mr Oldfield for his 27 November 2017 offending gives rise to a justifiable sense of grievance. The appellant’s sentence for the 27 November 2017 offending is set aside. In its place is substituted a sentence of imprisonment for two years reduced to one year, four months and 24 days on account of his pleas of guilty. That sentence is to be served cumulative on the sentence imposed for the 2 December 2017 offending resulting in an overall sentence of imprisonment for two years, 10 months and 24 days. A non-parole period of one year and 10 months is fixed. The overall sentence and non-parole period are to be taken to have commenced on 8 December 2017.
Sentencing Act 2017 (SA) ss 10, 26, referred to.
Green v The Queen (2011) 244 CLR 462; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR…

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 HAYMAN

Details

AGLC: R v HAYMAN [2019] SASCFC 72
Case: [2019] SASCFC 72
Decision Date: 28 June 2019

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by Mr Hayman. The dispute centred on whether the sentence imposed on Mr Hayman was excessive, particularly in light of the sentences received by a co-offender, Mr Oldfield. The appeal was heard by Nicholson, Lovell and Hinton JJ.

The court was required to determine whether the disparity between the sentence imposed on Mr Hayman and that imposed on Mr Oldfield was such as to warrant intervention. Specifically, the court had to consider whether Mr Hayman's sentence was demonstrably too severe, or if the disparity arose from Mr Oldfield receiving a sentence that was too lenient.

The court reasoned that the mere fact of disparity between sentences for co-offenders does not automatically mean the more severe sentence is unjust. Drawing on the principle established in *R v Kite*, the court noted that if one offender receives too light a sentence, it does not necessitate a reduction in another's sentence; rather, the disparity might ideally be remedied by increasing the lighter sentence, though this was not possible in the present appeal as Mr Oldfield's sentence was not before the court. The court then analysed Mr Oldfield's offending and criminal history, noting he was charged with and sentenced for additional offences, suggesting a greater role than Mr Hayman. The court also considered the gravity of Mr Oldfield's offences and his prior convictions, including previous suspended sentences and a long period without appearing in court. The court found that while Mr Oldfield's offending on 2 November 2017 was marginally less serious than his offending on 27 November 2017, the difference was not so significant as to justify relegating the earlier offending to minimal weight in sentencing. The court also noted Mr Oldfield's limited prior imprisonment and lack of convictions for break and enter or criminal trespass.

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

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Ratio Decidendi

Legal Principle Established

And to Bray CJ, Hogarth J and Sangster AJ in R v Kite who said:[17]…the mere fact that one convicted person has received too light a sentence is no reason why another convicted person should receive similar treatment. If there is excessive disparity, it does not follow that the one with the heavier sentence was treated too severely; it may be that the one with the lighter sentence was treated too leniently. Often in these cases the disparity should ideally be remedied by increasing the sentence of the one, rather than by reducing the sentence of the other. But we can only deal with the appeal before us. We have no power to interfere with the sentence imposed on Beattie. That sentence is not before us. If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved.[17] (1971) 2 SASR 94 at 96.Consideration We commence with a consideration of the sentence imposed on Mr Oldfield for the 27 November 2017 offending. The first observation to make is that he was charged with, and sentenced for, two additional property damage offences. The gravity of his offending was not equal to that of the appellant. Further, that Mr Oldfield was charged with these two additional offences does suggest that his role was greater than that of the appellant. It suggests that, when the appellant said he did not realise until late in the piece what he had become involved in, he should be believed and thus his role was less than that of Mr Oldfield. Second, whilst we share the Magistrate’s opinion that Mr Oldfield’s offending of 27 November 2017 was the most serious of the group of offences for which he was to be sentenced, to our minds Mr Oldfield’s offending of 2 November 2017 was only marginally less serious. The nature of the offending was the same, save for the property damage, but the value of the goods taken was greater. In each instance, we presume, Mr Oldfield engaged in theft to fund his drug habit. Whatever the difference in the gravity of the 2 November and 27 November 2017 offending, we do not think it was sufficient to be able to relegate the contribution of the 2 November 2017 offending to the sentence as attracting little greater weight than the balance of the offences as if all other offending was overwhelmed by the sentence imposed for the 27 November 2017 offending. Third, prior to being sentenced by the Magistrate Mr Oldfield had only ever been imprisoned on one occasion, and then for four months approximately 18 years ago. He had numerous prior convictions for dishonesty and driving offences punished in the main by fines and periods of licence disqualification. On three occasions he had had the benefit of a suspended sentence of imprisonment. He had no prior convictions for break and enter or criminal trespass. Between 2006 and 2016 he did not appear in the State’s criminal courts at all. His most recent offending, prior to that for which the Magistrate sentenced him, was relatively minor.