R v HUGHEY - [2008] SASC 263

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUGHEY
[2008] SASC 263
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice David)
3 October 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appellant appealed against sentence imposed in the District Court - sentence made cumulative upon a sentence of imprisonment which appellant was already serving for earlier offending - appellant conceded each sentence, considered separately, was not manifestly excessive - whether the sentence imposed for the later offending should have been reduced by application of the totality principle - sentencing judge reduced sentence for later offending to give credit for time spent in custody on those matters - DPP conceded sentencing judge miscalculated reduction for time spent in custody.
Held: In the circumstances the imposition of the cumulative sentence did not offend against the principle of totality - appeal allowed for the limited purpose of correcting the conceded miscalculation by reducing the head sentence by 10 days - appeal otherwise dismissed.
Mill v The Queen (1988) 166 CLR 59; R v Todd [1982] 2 NSWLR 517; R v Rossi (1988) 142 LSJS 451; R v Holder [1983] 3 NSWLR 245; R v Bruce & Hollick (1998) 71 SASR 536, considered.

R v HUGHEY
[2008] SASC 263
Court of Criminal Appeal: Duggan, Vanstone and David JJ

DUGGAN J: The appellant has appealed against a sentence imposed in the District Court. The sentence was made cumulative upon a sentence of imprisonment which the appellant was then serving. The principal issue raised on appeal is whether the sentence imposed should have been reduced by applying the principle of totality.
It is convenient to commence the summary of the relevant circumstances by referring to the earlier offending and the penalty imposed in relation to it.
The appellant appeared before the District Court charged with two counts of aggravated serious criminal trespass in a non-residential building, a count of serious criminal trespass in a non-residential building and a count of possessing implements of house breaking. He pleaded guilty to the offences and was sentenced to a single sentence of imprisonment for three years, four months and sixteen days. A non-parole period of two years and one month was imposed.
The Director of Public Prosecutions appealed against the sentence and, for reasons which are not relevant to the present appeal, the appeal was allowed, the sentence set aside and the appellant re-sentenced to a single sentence of imprisonment for three years, seven months and sixteen days with a non-parole period of two years and one month. It was ordered that the sentence and non‑parole period commence on 23 October 2007.
The sentence the subject of the present appeal relates to…

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 HUGHEY

Details

AGLC: R v HUGHEY [2008] SASC 263
Case: [2008] SASC 263
Decision Date: 3 October 2008

CaseChat Overview and Summary

In the case of R v Hughey, the appellant appealed against the sentence imposed by the District Court. The sentence was made cumulative upon a sentence of imprisonment that the appellant was already serving for earlier offending. The appellant conceded that each sentence, when considered separately, was not manifestly excessive. The legal issue before the court was whether the sentence imposed for the later offending should have been reduced by applying the totality principle. The sentencing judge had reduced the sentence for the later offending to give credit for the time spent in custody on those matters, but the Director of Public Prosecutions conceded that the sentencing judge miscalculated the reduction for time spent in custody.

The court held that the imposition of the cumulative sentence did not offend against the principle of totality. However, the appeal was allowed for the limited purpose of correcting the conceded miscalculation by reducing the head sentence by 10 days. The court otherwise dismissed the appeal. The court noted that the earlier offending consisted of multiple serious offences and that the appellant had a lengthy criminal history. The court found that the cumulative sentence of imprisonment for four years, three months and seventeen days did not offend against the principle of totality and gave sufficient acknowledgement to the totality of the criminal behaviour and the need for general and personal deterrence.

The court concluded that the appeal should be allowed for the limited purpose of correcting the conceded miscalculation by reducing the head sentence by 10 days. The court otherwise dismissed the appeal. The court's decision highlights the importance of applying the principle of totality when imposing cumulative sentences and the need to ensure that the reduction for time spent in custody is accurately calculated.

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

In some cases, such as where a large number of offences have been committed, the ordering of cumulative sentences is plainly appropriate. However, in a case such as the present, the observations of Doyle CJ in R v Bruce & Hollick[5] are apposite. In that case, after stating the nature of the totality principle, His Honour said:On the other hand, one has to be careful not to simply take a "bulk discount" approach. People who commit multiple offences cannot assume that the sentences imposed will be less than each offence warrants in isolation. It is only when the combined effect of the sentences is more than is warranted that any question of reduction can arise.[6][5] (1998) 71 SASR 536[6] Ibid at 541Conclusion The earlier offending consisted of two counts of aggravated serious criminal trespass, one count of serious criminal trespass and one count of possessing house breaking implements. The starting point for the sentence after the reduction for the pleas of guilty was imprisonment for four years. This was then reduced further because of the time spent in custody and on home detention. It is clear that the principle of totality, although not mentioned by the judge who sentenced the appellant for the earlier offending, must have been applied to reduce the total sentence for that offending to a moderate penalty, bearing in mind the number and seriousness of these offences. Undaunted by the fact that he had been arrested on the above offences and was on home detention bail, the appellant committed what was a planned and serious offence involving the removal of the safe and its contents from the shop at Plympton. The offences which constituted both the earlier and later sets of offending were serious. They involved a significant amount of property and caused extensive damage to premises and, in some instances, large losses to the business owners involved. The fact that the appellant committed the offences while on bail in relation to other offences is an aggravating feature. The appellant has a lengthy criminal history. The sentencing judge who sentenced him for the earlier offending stated that he had been sentenced to seven suspended prison terms in the past. On 30 August 2005 he was sentenced to imprisonment for twenty months with a non-parole period of eight months for offences which included unlawful possession, being unlawfully on premises, non-aggravated serious criminal trespass and dishonestly taking property without the owner’s consent. The sentence was suspended, as was a further sentence of imprisonment for three months for an offence of non-aggravated serious criminal trespass which was imposed on 13 December 2005. In my view the imposition of the cumulative sentence of imprisonment for four years, three months and seventeen days did not offend against the principle of totality. I consider it gave sufficient acknowledgement to the totality of the criminal behaviour and the need for general and personal deterrence without resulting in a crushing sentence.

Ratio Decidendi

Legal Principle Established

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