SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOPPER
[2018] SASCFC 53
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
13 June 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - SENTENCE
Appeal against sentence. The appellant pleaded guilty to a series of offences committed on three occasions during May and August 2016, including theft, interference with a motor vehicle, aggravated serious criminal trespass in a place of residence and aggravated robbery.
The appellant was sentenced separately for the three instances of offending. The appellant was entitled to a discount for each of the offences on account of her pleas of guilty. For the first count of theft, the Judge imposed a term of imprisonment of eight months, reduced from a starting point of 12 months. For the offences of interference with a motor vehicle and theft, a single term of five months, reduced from six months, was imposed. For the offences of aggravated serious criminal trespass and aggravated robbery, the Judge imposed a single sentence of six years and five months imprisonment, reduced from a starting point of eight years.
The Judge ordered that the three sentences be served cumulatively, resulting in a total period of imprisonment of seven years and six months, backdated to commence on 29 January 2017. His Honour fixed a non-parole period of three years and nine months.
The appellant was granted permission to appeal on a single ground, that the individual cumulative sentences imposed were each manifestly excessive and resulted in a head sentence and non-parole period which were manifestly excessive. The appellant also applies for permission to appeal on a number of other grounds.
Held per Nicholson J (Kelly and Blue JJ agreeing), allowing the appeal:
1. The starting points selected by the Judge for each of the sentences imposed were outside the range available for the respective offences.
2. Taking into account the undoubted seriousness of the offending but having regard to the appellant’s personal circumstances, the ultimate sentencing outcome was manifestly excessive.
3. Each of the District Court sentences is set aside.
4. The appellant is remanded in custody awaiting the preparation of a pre-sentence report and resentencing by this Court at a later date.
Criminal Law Consolidation Act 1935 (SA) s 86A, s 134, s 137, s 170; Criminal Law (Sentencing) Act 1988 (SA) s 9C, s 10, s 10C, referred to.
R v Humby [2004] SASC 358; R v Place (2002) 81 SASR 395; R v Curry [2016] SASCFC 16, considered.
R v HOPPER
[2018] SASCFC 53Court of Criminal Appeal: Kelly, Blue and Nicholson JJ
KELLY J.
I agree with the orders proposed by Nicholson J and with his…
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- AGLC
- R v Hopper [2018] SASCFC 53
- Case
- [2018] SASCFC 53
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was to determine whether the sentencing judge had failed to take into account relevant factors concerning the appellant's prospects for rehabilitation, as required by law. The appellant argued that the sentencing remarks did not demonstrate a sufficient consideration of these factors, despite substantial material being presented regarding her changed personal circumstances, cessation of drug use, engagement with support programs, and desire to rebuild relationships with her children.
The court acknowledged that the sentencing judge made only a brief, express reference to rehabilitation, noting the provision of information about carers who would encourage rehabilitation. However, the court found it difficult to definitively ascertain the extent of the judge's consideration of rehabilitation prospects from the sentencing remarks alone. Despite this, the court reasoned that given the comprehensive nature of the sentencing conference and the detailed submissions presented by both parties concerning the appellant's rehabilitation, it was unlikely that these matters were not considered by the judge. The court noted that while there might be an argument that these factors were given less weight than warranted, this did not amount to a procedural error under the principles established in *House v The King*. The appellant needed to establish that the judge failed to take these matters into consideration at all, which the court found unlikely given the circumstances.
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
Established by: KELLY J, NICHOLSON J
The respondent contends that, although the Judge did not express findings as to the appellant’s prospects for rehabilitation, his Honour did refer to and take into account factors relevant to an assessment of rehabilitation prospects. Counsel submitted that the non-parole period, being 50 per cent of the head sentence, demonstrates that the Judge did appreciate the appellant’s relatively positive prospects for rehabilitation.Consideration The only express reference to rehabilitation in the sentencing remarks is the following. I bear in mind also that at the conference the evidence was given or information was given about carers who will take steps to encourage your rehabilitation when you are released from prison.It is difficult for this Court to determine, on a reading of the sentencing remarks as a whole, the extent to which the Judge did give consideration to the appellant’s prospects for rehabilitation. Further, his Honour expressed no conclusion as to those prospects. At the sentencing conference and in submissions, counsel for the appellant put before the Judge a substantial amount of material relevant to the question of rehabilitation including, in particular, as to the changes to the appellant’s personal circumstances in the year or so between her arrest and sentence. The appellant is a relatively young woman. At the time of sentencing, she had been in custody for around 15 months, significantly longer than her previous longest custodial period of 18 days. The sentencing remarks indicate that the Judge sentenced on the basis that the offences were committed to support the appellant’s methylamphetamine use in the context of her having an addiction. There was information before the Judge at the time of sentencing that the appellant had ceased drug use upon her arrest and had remained drug free for over a year. This was the longest period during which she had abstained from drug use since her early twenties. During her time in custody prior to sentencing, the appellant had been able to engage with Aboriginal support programs and intervention programs relating to drug use to assist her in continuing to abstain from drug use in the future. She had not previously had access to such programs. Given that the Judge sentenced on the basis that the offending was drug related, these matters were important factors in assessing the appellant’s prospects for rehabilitation. The appellant has ceased the relationship with her former partner who was violent towards her. It was submitted by counsel that the appellant is keen to rebuild her relationship with her children upon her release and that this would be a positive factor with respect to her continued rehabilitation. Counsel further submitted that the appellant has demonstrated contrition, remorse and insight into her offending, illustrated by the terms of the letter of apology that was read at the sentencing conference. Given the circumstances of the offending, all of these matters were important to a proper assessment of the appellant’s likelihood of reoffending and prospects of rehabilitation. There is some force in the argument that the Judge may have given less weight to these matters than was warranted. However, this would not be sufficient to establish a process error in the House v The King[8] sense. What the appellant must establish in order to succeed on ground 4 is that the Judge failed to take such matters into consideration. However, the Judge presided over a lengthy and comprehensive section 9C conference. His Honour received detailed submissions from the parties on the next day and sentenced the following day. It is unlikely that the various matters bearing on the question of rehabilitation examined at length during the 9C conference and in submissions did not form part of his Honour’s considerations. [8] [1936] HCA 50; (1936) 55 CLR 499.