R v Humby

Case [2004] SASC 358

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HUMBY; POLICE v HUMBY

Judgment of The Court of Criminal Appeal

(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Gray)

12 November 2004

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES

SERIOUS CRIMINAL TRESPASS IN A PLACE OF RESIDENCE

The DPP sought leave to appeal against a sentence of 2 years and 11 months imprisonment with a non-parole period of 18 months imposed on the respondent following his plea of guilty in the District Court to charges of aggravated serious criminal trespass in a place of residence and robbery in company - the respondent and another man made a violent forced entry into a house in an isolated area of the countryside where the occupants, two elderly men, were asleep - they confined the occupants to chairs, and over a period of about two and a half hours ransacked the house of cash, electrical items and valuables worth in excess of $5,000 - they made off after tying the victims to the chairs and making further threats to them - the respondent was a man of 31 years of age with a long history of prior convictions - held that the sentence fell so far short of a proper punishment as to justify the grant of leave to appeal to the DPP - consideration of sentencing principles applicable in cases of multiple offending - leave granted and appeal allowed - after allowing for a separate appeal from the Magistrates Court heard concurrently, a single sentence of 9 years and 4 calendar months imprisonment was substituted, with a non-parole period of 7 years.

Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Delphin (2001) 79 SASR 429; R v Staker [2001] SASC 266 (unreported); R v Siozios [2004] SASC 299 (unreported); Dinsdale v The Queen (2000) 202 CLR 321; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1977) 137 CLR 293; R v Elliott (2001) 121 A Crim R 254; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Jason (2002) 36 MVR 474; R v P (2003) 87 SASR 287; R v Nylander (2003) 228 LSJ 28; R v Power [2003] SASC 288; R v Johnson (2004) 78 ALJR 616, considered.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE

POWER OF THE MAGISTRATES COURT TO ORDER EARLY RELEASE ON A BOND

The Police appealed against the sentence imposed upon the respondent in the Magistrates Court following his plea of guilty to a number of charges of non-aggravated serious criminal trespass, larceny and false pretences…

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AGLC
R v Humby [2004] SASC 358
Case
[2004] SASC 358
Decision Date

CaseChat Overview and Summary

The case of R v Humby involved the respondent, Keith Humby, who was sentenced by a District Court judge following pleas of guilty to charges of aggravated serious criminal trespass in a place of residence and robbery in company. The Director of Public Prosecutions (DPP) sought leave to appeal against the sentence imposed by the District Court, which was deemed to be insufficient in reflecting the criminality of the offending, maintaining appropriate sentencing standards, and adequately reflecting deterrent elements. Additionally, the DPP argued that the sentence was so disproportionate to the seriousness of the crime as to shock the public conscience. The appeal was heard jointly with an appeal against a sentence imposed by a Magistrates Court.

The primary legal issues before the court were whether the District Court sentence was appropriate in light of the gravity of the offences, whether it upheld appropriate sentencing standards and deterred similar offences, and whether it was proportionate to the crimes committed. The court also needed to consider the appropriate sentence to substitute for both the District Court and Magistrates Court sentences.

The court found that the District Court sentence did not adequately reflect the seriousness of the crimes. The offences involved a violent entry into the victims' residence, with the offenders armed and threatening the elderly victims, resulting in one victim suffering a mild heart attack. The court considered the respondent's background, including a history of drug and alcohol abuse, a dysfunctional family background, and low intelligence. Despite these mitigating factors, the court concluded that the sentence should reflect the significant impact on the victims and the need for deterrence. The court substituted a sentence of 9 years and 4 months for imprisonment, with a non-parole period of 7 years, taking into account the principle of totality and the recommendations of other judges. The court granted leave to appeal, allowed both appeals, quashed the original sentences, and imposed the new sentence to commence from 26 February 2004.

Orders

Orders of the court

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Background

Background to the litigation

In the result, the hearing then proceeded as a joint hearing of the application for leave to appeal from the District Court sentence, and the Magistrates Court appeal.Respondent’s background At the time he was sentenced in the District Court, the respondent was 31 years of age. When he was fourteen he absconded from home and began living on the street and in squats. He took to drugs and alcohol. In the course of time, between 1985 and 2002, he accumulated a long history of offending, including convictions for larceny, breaking and entering, assault, and possession and use of cannabis. The sentencing judge had the benefit of a psychological report furnished by Dr Balfour, from which it is clear that the respondent comes from a dysfunctional family background. His father was a violent alcoholic and his parents separated when he was ten years old. Mr Balfour concludes that the respondent is a man of low average intelligence, with poor literacy and numeracy skills. He is prone to depression, and once attempted suicide. He has a history of drug and alcohol abuse problems. At the time of the offences, he was addicted to amphetamine. The need for money to feed his addiction has obviously played a large part in causing him to offend.The Application for Leave to Appeal from the District Court Sentence The maximum penalty for both aggravated serious criminal trespass in a place of residence and for robbery in company is life imprisonment.[4][4] Criminal Law Consolidation Act 1935, s 170(2) and s 158(b). Section 158(b) was repealed by Act No 26 of 2002, the repeal being effective from 5 July 2003, which was about a year after the offence in question was committed. There were a number of features which, in my view, put both offences at the higher end of the scale of seriousness. The respondent and the co-offender made a violent entry into the premises, which were on an isolated property in the Hills, at a time when both the elderly victims were asleep in the house. The offenders were armed with wrenches, with which they menaced the victims, whom they proceeded to immobilise by confining them to chairs, eventually fastening them to the chairs with tape. The ransacking of the house went on for a lengthy period of about two and a half hours, during which time they stripped the house of whatever was apparently of value and able to be carried away. They made serious threats to the victims before making off in their car. The respondent committed the offences only four months after he was released from custody on the 12 months good behaviour bond to which I have referred. This circumstance must be regarded as a circumstance of aggravation, notwithstanding the fact that the bond was imposed as part of a sentencing package which was beyond the power of the sentencing magistrate. As I have said, one of the victims suffered a mild heart attack, which required hospitalisation. The victim impact statements indicate that both victims remain distressed and apprehensive, and have taken various measures, such as the installation of a duress alarm and grilles to their windows, in order to improve their security.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PERRY J
Exercising the power conferred by s 18A of the Sentencing Act, I would accumulate that sentence with what I consider to be the appropriate sentence to be substituted on the appeal from the District Court, and express the accumulation as a single sentence. I would allow some moderation of the aggregate sentence, by reference to the principle of totality.Conclusion The total of a substituted sentence on the District Court appeal of 9 years, and a substituted sentence of 16 months on the magistrate’s appeal, would give a total head sentence of 10 years and 4 months. Some reduction from that amount should be made by reference to the principle of totality. Since dictating the above, I have perused the reasons for judgment of Gray J. He suggests the substitution of a head sentence of 9 years and 4 months. In the circumstances, and allowing for a reduction by reference to the principle of totality on the figure which I have suggested, I would agree that a head sentence of that order should be substituted. I agree also that it is appropriate to fix a non-parole period of 7 years. I would order:1.That the application for leave to appeal from the District Court sentence be granted.2.That the appeal from the District Court sentence be allowed, and the sentence under appeal quashed.,3.That the Magistrates Court appeal be allowed, and the sentence under appeal quashed.4.That there be substituted for both sentences, a single sentence of imprisonment of 9 years and 4 calendar months.5.That a non-parole period be fixed of 7 years.6.That the head sentence and the non-parole period commence from 26 February 2004. NYLAND J: I have had the advantage of reading the reasons of both Perry J and Gray J. In my opinion, the circumstances of this case make it appropriate to treat the offending as one course of conduct for sentencing purposes. I therefore agree with the reasons expressed by Gray J as discussed in Elliott[15]. In view of the serious nature of this offending I agree that leave should be granted to the Crown to appeal against the sentence imposed in the District Court. I agree with the sentence proposed by Gray J.GRAY J[15] (2001) 121 A Crim R 254Introduction On 11 May 2004 the respondent Keith Humby was sentenced by a District Court judge following pleas of guilty to charges of aggravated serious criminal trespass in a place of residence and robbery in company. The sentencing judge imposed the one penalty for the respondent’s offending: a head sentence of two years and 11 months. A non parole period of 18 months was fixed. The judge directed that both the head sentence and the non parole period commence on 26 February 2004 being the date on which the respondent had been taken into custody in respect of this offending. The Director of Public Prosecutions has sought leave to appeal against the sentence on the grounds that the sentence:-failed to adequately reflect the criminality of the offending;-failed to maintain appropriate sentencing standards for offences of this nature;-failed to adequately reflect deterrent elements of sentencing;-is so disproportionate to the seriousness of the crime as to shock the public conscience.The Magistrates Appeal

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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