R v Henstridge No. Sccrm-97-320 - [2000] SASC 112

R v HENSTRIDGE
[2000] SASC 112

Court of Criminal Appeal: Debelle, Nyland and Lander JJ (ex tempore)

NYLAND J: This is an appeal against a sentence imposed by a Supreme Court judge on 26 November 1997. In order to understand how the matter comes before this court it is necessary to have regard to some of the appellant’s prior history.
On 1 February 1991, the appellant was sentenced on one count of armed robbery and two counts of escaping custody, to be imprisoned for seven years 11 months and 10 days. The non-parole period, (as adjusted for Truth in Sentencing) became a period of four years, five months and eight days.
On 12 April 1995, the appellant was released on parole. On 29 November 1995 he was arrested for the offence of armed robbery at Findon and he remained in custody for that offence together with some driving offences until 8 November 1996 when he appeared in the Pt Adelaide Magistrates Court with respect to the driving offences and for the breach of his parole.
On 8 February 1996, in Pt Adelaide Magistrates Court the appellant received a sentence for four months imprisonment with respect to the driving offences. Those offences constituted a breach of parole. He therefore became liable to serve the balance of the unexpired period of the previous sentence being a period of three years, one month and three days.
Following the sentence imposed in the Pt Adelaide Magistrates Court, the appellant was subject to a head sentence of three years, five months and three days. A non-parole period of four months was fixed. The sentence and non-parole period were ordered to commence from 8 February 1996. This meant that the projected parole release date for the appellant was 7 June 1996. The expiry date of parole was 10 July 1999.
The appellant was due for release on parole on 7 June 1996 but in view of the charge with respect to the armed robbery at Findon on 25 July 1995 he was not released on parole but remained in custody in relation to that charge until 7 July 1996 when he was granted home detention bail. The appellant, subsequently, absconded and a Parole Board warrant and bench warrant were issued.
On 3 September 1996, the appellant was involved in an armed robbery at Gillman to which he subsequently pleaded guilty. The appellant was arrested and charged with the Gillman offence on 5 September 1996. On 27 September 1996 the Parole Board and bench warrants were executed. On 12 November 1996 the appellant appeared before the Parole Board. The Parole Board cancelled his parole from 27 September 1996 to 11 December 1996 for failing to report as directed.
At the expiration of the order imposed by the Parole Board, the appellant was remanded in custody in relation to the Findon and Gillman armed robberies.
On 10 February 1997, the appellant was arraigned in the District Court on the Gillman robbery and pleaded not guilty to that charge.

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

Case: [2000] SASC 112
Decision Date: 19 April 2000

CaseChat Overview and Summary

The appellant in this case was convicted of armed robbery and breaching parole, and subsequently received a sentence of imprisonment for both offences. The appellant appealed against the sentence imposed by the Supreme Court judge. The Court of Criminal Appeal was required to determine whether the sentence was manifestly excessive and whether the sentencing judge failed to take into account the appellant's plea of guilty and time spent in custody. The court found that the sentence of seven years for the armed robbery was not manifestly excessive, but the sentencing judge failed to make any reference to the appellant's plea of guilty and time spent in custody. The court set aside the original sentence and imposed a new sentence of seven years, seven months and 23 days, with a non-parole period of five years, both to date from 26 November 1997.

The court found that the appellant's prior criminal history, including armed robbery and breaching parole, justified a significant sentence. However, the court took into account the appellant's plea of guilty and time spent in custody, and reduced the sentence accordingly. The court also noted that the appellant had made efforts to rehabilitate himself while in custody. The court concluded that the new sentence was appropriate in light of the appellant's criminal history and the circumstances of the offence. The court emphasised that the new sentence should not be regarded as indicating any departure from the normal standards of sentencing for this serious offence.

The Court of Criminal Appeal allowed the appeal and set aside the original sentence. The court imposed a new sentence of seven years, seven months and 23 days, with a non-parole period of five years, both to date from 26 November 1997. The court emphasised that the new sentence reflected the peculiar circumstances of this case and should not be regarded as indicating any departure from the normal standards of sentencing for this serious offence.

Orders