R v Howe - [2016] SASCFC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v HOWE
[2016] SASCFC 56
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
13 May 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - ROLE OF GUILTY PLEA OR DEPOSITIONS
Appeal by defendant against sentence.
The appellant was a one third owner of a ski boat and trailer, kept in a shed near shacks at Younghusband. The boat had been purchased four years earlier for $45,000. The appellant was engaged in litigation against his co-owners in relation to companies of which they were directors and shareholders. The appellant decided to take the boat and trailer, sell them in Adelaide and appropriate the proceeds to himself in light of his claims against his business partners.
In the early hours of 14 June 2014, the appellant, accompanied by a friend, broke into a shed, connected a boat and trailer to their vehicle, and drove towards Adelaide. They were observed by police in Murray Bridge and arrested. The appellant was charged with theft of the boat and trailer. Unbeknown to the appellant, the boat and trailer he took were not the ones of which he was a co-owner. They belonged to another person and were valued at approximately $100,000.
The defendant was initially charged with theft and serious criminal trespass. Negotiations resulted in a new information being laid in the District Court charging theft and being unlawfully on premises, to which the appellant pleaded guilty. As a result, the appellant was eligible for a discount of up to 10 per cent in respect of the theft charge and up to 40 per cent in respect of the unlawfully on premises charge.
The appellant was sentenced to a single penalty of imprisonment for eight months, reduced from a starting point of 10 months on account of the guilty pleas, which was suspended on his entering into a bond to be of good behaviour.
The appellant appeals against the sentence on the ground that it was manifestly excessive because it was not necessary to impose imprisonment or alternatively the starting point was manifestly excessive and on the further ground that the Judge erred by failing to explain how the single sentence was arrived at after application of the differential discounts.
Held per Blue J (Kelly and Nicholson JJ agreeing):
1.      The gravity and circumstances of the crime were such that any sentence other than of imprisonment would have been inappropriate (at [50]).
2.      The starting point of imprisonment for 10 months was not manifestly excessive (at [52]).
3. The Judge erred in utilising section 18A of the Criminal Law (Sentencing) Act 1988 without identifying separate starting points and separate discounts (at [55]-[59]).
4.      Notwithstanding the error, on resentencing, a term of imprisonment of at least eight…

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 Howe

Details

AGLC: R v Howe [2016] SASCFC 56
Case: [2016] SASCFC 56
Decision Date: 13 May 2016

CaseChat Overview and Summary

In *R v Howe*, the appellant, Howe, appealed against his sentence imposed by a judge of the District Court of South Australia. The appeal concerned the factual basis for sentencing, specifically the calculation of discounts under section 10C of the Sentencing Act.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had provided adequate reasons for the discounts applied to the appellant's sentence. The Court was required to determine if the discounts were appropriately calculated and justified in light of the gravity and circumstances of the offences.

The Court found that the sentencing judge had not given adequate reasons for the calculation of the discounts allowed under section 10C of the Sentencing Act. However, considering the seriousness of the theft offence, the Court indicated that a starting point of at least nine months imprisonment would be appropriate if it were to resentence the appellant. Applying a 10 per cent discount to this starting point would result in a sentence of just over eight months for the theft offence alone.

Ultimately, the Court dismissed the appeal pursuant to section 353(4)(b) of the Criminal Law Consolidation Act 1935 (SA), as it was obliged to do irrespective of the sentencing discount issue, without taking into account the sentence for the unlawfully on premises offence. Nicholson J agreed with the reasons provided by Blue J.

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

It follows that the Judge did not give adequate reasons for the calculation of the discounts allowed under section 10C of the Sentencing Act. However, given the gravity and circumstances of the theft offence, if this Court were to resentence the appellant, it would be appropriate to adopt a starting point of at least imprisonment for not less than nine months. Applying a 10 per cent discount to that starting point would give a sentence for the theft offence alone of imprisonment for just over eight months. Accordingly, without taking into account what would be an appropriate sentence for the unlawfully on premises offence, this Court is obliged in any event to dismiss the appeal pursuant to section 353(4)(b) of the Criminal Law Consolidation Act 1935 (SA).Conclusion I would dismiss the appeal.NICHOLSON J: I agree with Blue J.

Ratio Decidendi

Legal Principle Established

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