R v IRVINE - [2005] SASC 492

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v IRVINE
Judgment of The Court of Criminal Appeal
(The Honourable Justice Besanko, The Honourable Justice Anderson and The Honourable Justice Layton)
22 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence – appellant convicted of offence of aggravated robbery and offence of assaulting police officer – pleaded guilty to offence of assaulting police officer at reasonably early stage – pleaded guilty to offence of aggravated robbery about two weeks before date fixed for trial – sentenced to imprisonment for 4 years and 1 month and non-parole period of 2 years and 1 month – appealed on basis that judge erred in three respects – first, in giving appellant no credit for pleas of guilty – secondly, in giving insufficient weight to appellant’s youth and level of mental functioning – thirdly, in declining to suspend sentence.
Held, allowing appeal – as to first ground, judge erred in giving appellant no credit for pleas of guilty – appellant entitled to small allowance – as to second ground, judge gave sufficient weight to appellant’s youth and level of mental functioning – as to third ground, judge did not err in declining to suspend sentence – sentence passed by judge set aside – appellant sentenced to imprisonment for 3 years and 10 months and non-parole period of 2 years – sentence not suspended.
Criminal Law Consolidation Act 1935 ss 137(2), 353(4); Summary Offences Act 1953 s 6(1); Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Drumgoon (unreported, 13 December 1995, judgment no S5382); R v Engert (1995) 84 A Crim R 67; R v Wiskich (2000) 207 LSJS 431; R v Gommers [2005] SASC 493; R v Place (2002) 81 SASR 395; R v Harris, R v Simmonds (1992) 59 SASR 300, considered.

R v IRVINE
[2005] SASC 492
Court of Criminal Appeal: Besanko, Anderson and Layton JJ

BESANKO J: This is an appeal by leave against a sentence imposed by a judge of the District Court. The appellant pleaded guilty to the offence of aggravated robbery and the offence of assaulting a police officer.
The offence of aggravated robbery carries a maximum penalty of imprisonment for life under s 137(2) of the Criminal Law Consolidation Act 1935 (“CLCA”), and the offence of assaulting a police officer carries a maximum penalty of a fine of $10,000 or imprisonment for two years under s 6(1) of the Summary Offences Act 1953.
The judge imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of imprisonment for 4 years and 1 month. He fixed a non-parole period of 2 years and 1 month. The judge declined to make any allowance for the appellant’s pleas of guilty. He declined to suspend the term of imprisonment.
The appellant had been in custody since 19 December 1994 and she…

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 IRVINE

Details

AGLC: R v IRVINE [2005] SASC 492
Case: [2005] SASC 492
Decision Date: 22 December 2005

CaseChat Overview and Summary

The case of R v Irvine involved an appeal against the sentence handed down by the trial judge. The appellant, Irvine, had been convicted of the offences of aggravated robbery and assaulting a police officer. Irvine had pleaded guilty to the assault charge at a reasonably early stage and to the aggravated robbery charge about two weeks before the trial date. The trial judge sentenced Irvine to imprisonment for 4 years and 1 month, with a non-parole period of 2 years and 1 month. Irvine appealed the sentence, arguing that the judge had erred in three respects: not giving any credit for the pleas of guilty, not giving sufficient weight to Irvine’s youth and level of mental functioning, and declining to suspend the sentence.

The appeal was focused on the judge’s failure to provide any credit for the pleas of guilty. The court acknowledged that it was standard practice to allow a discount for a plea of guilty, as it avoided the cost and inconvenience of a trial. However, the judge had not given any credit for the late plea of guilty to the aggravated robbery charge, believing it was too late in the process. The court found that although the plea was late, it was still entitled to a small allowance. Regarding the second issue, the court determined that the judge had given sufficient weight to Irvine’s youth and level of mental functioning. Finally, the court found that the judge did not err in declining to suspend the sentence.

The appeal was allowed on the basis that the judge had erred in not providing any credit for the pleas of guilty. The sentence was reduced from 4 years, 1 month to 3 years, 10 months, and the non-parole period reduced from 2 years, 1 month to 2 years. The sentence and non-parole period were to commence from the day Irvine was taken into custody, and the sentence should not be suspended. The final orders were that the sentence passed by the judge was set aside, and a new penalty of 3 years and 10 months was imposed with a non-parole period of 2 years.

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

ANDERSON J

I return to the first issue on the appeal. The practice of allowing a discount for a plea of guilty and the reasons for the allowance have been discussed in a number of cases. It is sufficient for present purposes to refer to R v Place (2002) 81 SASR 395 per Doyle CJ, Prior, Lander and Martin JJ at 411-413 [40]-[46]. In this case, the judge erred because he took the view that the appellant was not entitled to a credit for the plea of guilty to the offence of aggravated robbery because the plea was made “late in the piece”. The plea avoided the cost and inconvenience of a trial and there are no other factors to suggest that the appellant was not entitled to a small allowance for the plea. It is important that offenders be aware that, all other things being equal, they will be given a discount for a plea of guilty: R v Harris; R v Simmonds (1992) 59 SASR 300 per King CJ (with whom Olsson and Mullighan JJ agreed) at 302. I think that this principle would be undermined if this Court was too ready to conclude that the fact that no allowance was made for a plea of guilty made no difference to the sentence passed. That is not to say that this Court could not do that in an appropriate case, but I am not satisfied that this is such a case. In view of the timing of the plea to the offence of aggravated robbery, only a small allowance should be made in this case. I would reduce the sentence passed from 4 years, 1 month to 3 years, 10 months. I have given more anxious consideration to the question whether the non-parole period fixed by the judge should be reduced because, having regard to the relevant factors in this case, there is force in the contention that the non-parole period was a moderate one. The judge himself described the non-parole period as “relatively low”. However, I would make a small allowance of one month for the appellant’s pleas of guilty and reduce the non-parole period from 2 years, 1 month to 2 years.Conclusions The appeal should be allowed and the sentence passed by the judge set aside. I would impose one penalty for the two offences of 3 years and 10 months and fix a non-parole period of 2 years. The sentence and non-parole period are to commence from the day the appellant was taken into custody. The sentence should not be suspended. I agree that the appeal should be allowed for the reasons given by Besanko J. I agree also with the penalty he proposes and with the non-parole period he fixes. I agree also that the sentence should not be suspended. LAYTON J: Having had the opportunity of reading the reasons for decision of Besanko J, I agree with his reasons and with the orders which he proposes.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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