R v Hunter No. Sccrm-00-48 - [2000] SASC 137

R v HUNTER
[2000] SASC 137

Court of Criminal Appeal: Doyle CJ, Duggan and Lander JJ (ex tempore)

DOYLE CJ: The appellant appeals against a sentence imposed by the District Court.
The appellant pleaded guilty in the District Court to a charge of illegal use of a motor vehicle. The District Court Judge sentenced him to imprisonment for 18 months on this offence. The appellant submits that the sentence is excessive.
The District Court Judge also dealt with a breach of a bond admitted by the appellant, the offence of illegal use constituting the breach of the bond. A term of the bond required the appellant to appear for sentence if he breached the bond. For the offence of assault in respect of which the bond was entered into, the District Court Judge sentenced the appellant to imprisonment for 6 months, cumulative upon the other sentence. No complaint is made about this latter sentence.
At the time, the appellant was serving a sentence of imprisonment that was due to expire, on my calculations, on 21 March 2000. His non-parole period was due to expire on 20 December 1999, the day upon which the District Court Judge passed sentence. Accordingly, the District Court Judge had to extend the non-parole period. He extended it by 12 months. It is now due to expire, on my calculations, on 19 December 2000. The appellant submits that the non-parole period is excessive.
The appellant has a poor record. He has committed numerous offences, and a good number of them are relatively serious offences involving motor vehicles and sometimes involving as well offences the essence of which was linked to the consumption of alcohol. As well, and it is a significant feature of this case, this was the appellant’s seventh offence of illegal use of a motor vehicle. The appellant has also been convicted several times for assaults and like offences, and has two convictions for the very serious offence of armed robbery.
The circumstances of the offence can be stated very briefly. The appellant was asked by acquaintances to obtain a car and deliver it to a certain address. He got the car by taking it unlawfully. When he realised that the car was to be used in connection with certain other quite serious offences, he departed and took no part in those offences.
That is to his credit, although it should be borne in mind that he must have realised that the car that he obtained was to be used for some unlawful purpose.
In view of the appellant's record, and six previous like offences, the sentence that the Judge imposed is understandable, although at first sight it would appear unusually high for the offence of illegal use.
The District Court Judge had the benefit of a helpful pre-sentence report. It describes, on the appellant's part, a history of drug and alcohol abuse and difficulty in domestic relationships. Violence has been a feature of his domestic relationships. As is often the case, the appellant…

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 Hunter No. Sccrm-00-48

Details

AGLC: R v Hunter No. Sccrm-00-48 [2000] SASC 137
Case: [2000] SASC 137
Decision Date: 16 May 2000

CaseChat Overview and Summary

The case of R v HUNTER, heard in the Court of Criminal Appeal of South Australia, involves an appeal by the appellant against a sentence imposed by the District Court. The appellant had pleaded guilty to the charge of illegal use of a motor vehicle, for which the District Court Judge sentenced him to imprisonment for 18 months. The appellant argues that the sentence is excessive, as does he for the 12-month extension of his non-parole period. The appeal raises legal issues regarding whether the District Court Judge appropriately considered the appellant's early plea of guilty and other mitigating factors in imposing the sentence. The court had to determine if the sentence was within the appropriate range of penalty, particularly in light of the appellant's poor criminal history and the nature of the offence.

The Court of Criminal Appeal, consisting of Doyle CJ, Duggan, and Lander JJ, considered the appellant's arguments and the District Court Judge's reasoning. The court found that the appellant had a history of serious offences, including multiple instances of illegal use of a motor vehicle, assaults, and armed robbery. The circumstances of the current offence, though serious, did not warrant a reduction in sentence as the appellant had distanced himself from more severe crimes that the stolen vehicle was intended to facilitate. The court also acknowledged the appellant's history of drug and alcohol abuse, difficulties in domestic relationships, and a propensity to associate with people of bad character. Despite these factors, the court concluded that the sentence was appropriate given the appellant's persistent criminal behaviour and the need for personal deterrence.

In its judgment, the Court of Criminal Appeal held that the sentence was not excessive, even considering the early plea of guilty, which the court believed should have resulted in a reduction of around 25%. The court found that the District Court Judge was entitled to be sceptical of the appellant's assurances of future change, given his history of reoffending despite previous opportunities for leniency. The court also noted that the appellant was on parole when the offence was committed, which further justified the sentence. The appeal was dismissed, and the original sentence was upheld.

Doyle CJ, for the court, dismissed the appeal and confirmed that the order of the court was that the appeal be dismissed.

Orders