(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Blue)
30 October 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CONDUCT - THREATS
The appellant pleaded guilty to the offence aggravated robbery and was sentenced to a period of four years and six months, with a non-parole period of two years and six months. The appellant appeals against this sentence on the ground that it is manifestly excessive.
Held by Kourakis CJ (Kelly and Blue JJ agreeing) allowing the appeal:
The sentence is manifestly excessive as it fails to sufficiently differentiate between offences of the kind considered in R v Place and offences of the kind where an offender intends a surreptitious theft (Kourakis CJ at [16]). The sentence is also severe having regard to the appellant’s youth, personal circumstances and short periods of detention and imprisonment previously served (Kourakis CJ at [16]).
A head sentence of three years and two months with a non-parole period of one year and 11 months is imposed (Kourakis CJ at [16]).
Court of Criminal Appeal: Kourakis CJ, Kelly and Blue JJ
KOURAKIS CJ: This is a sentence appeal. On 16 January 2014 the appellant, John William Jackson, pleaded guilty in the Magistrates Court to one count of aggravated robbery contrary to s 137 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) committed on 15 October 2013. He was committed for sentence to the District Court.
The sentencing Judge would have imposed a head sentence of six years imprisonment but for the appellant’s plea of guilty on account of which the Judge reduced that nominal sentence by 25 percent. The Judge imposed a head sentence of four years and six months imprisonment with a non-parole period of two years and six months, backdated to commence on 15 October 2013 when the appellant was taken into custody. The appellant appeals against the sentence on the ground that it is manifestly excessive. I would allow the appeal. My reasons follow.
The offence
The offence was committed at about 9.15pm on 15 October 2013 at the BWS store in Exeter. On that day the appellant had been drinking and taking the drug ice. When he entered the store, the appellant was approached by a store attendant, who recognised him as having previously stolen alcohol from the premises, and asked to leave on account. The appellant attempted to punch the attendant but…
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.
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Details
AGLC
R v Jackson [2014] SASCFC 118
Case
[2014] SASCFC 118
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal against sentence by the appellant, R v Jackson, before the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Kelly and Blue JJ. The appeal arose from a conviction for an offence involving threats.
The central legal issue before the court was whether the sentencing judge had erred in imposing a particular sentence, specifically whether the sentence was manifestly excessive. This involved considering the nature of the offence, its comparison to similar offences in precedent cases, and the appellant's personal circumstances, including his youth, background, and prior offending history. The court also had to determine the appropriate application of sentencing principles, such as general deterrence and the protection of the community, in light of these factors and the appellant's guilty plea.
The Chief Justice, with whom Kelly and Blue JJ agreed, found the sentence to be manifestly excessive for two primary reasons. Firstly, the court distinguished the appellant's offence, which involved surreptitious theft and the use of aggravating circumstances after detection, from the more serious and dangerous offences considered in the precedent case of *Place*. Secondly, the sentence was deemed too severe given the appellant's youth, deprived upbringing, and the relatively short periods of his previous custodial sentences. While acknowledging the appellant's poor prior offending record, the court considered that a more incremental approach to sentencing might allow for rehabilitation.
Ultimately, the Full Court allowed the appeal, reducing the head sentence. The Chief Justice would have imposed a sentence of four years and six months, but for the appellant's guilty plea. Applying a reduction of 16 months for the plea, the court imposed a head sentence of three years and two months, with a non-parole period of one year and eleven months.
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
Counsel for the Director of Public Prosecutions argued that the offence fell literally within the description in [101] of the judgment in Place. I do not accept that submission because it ignores the common law judicial method. The reasons for judgment of a court must always be considered in the context of the facts of the case they decide. The Director also contended that there was no error in the approach of the sentencing Judge and that general deterrence and protection of the community remained very important considerations. I deal with that submission below in considering the appellant’s contention that the sentence was manifestly excessive.Conclusion The sentence is manifestly excessive for two reasons. First it does not sufficiently differentiate between offences of the kind under consideration in Place and offences such as this in which the offender intends a surreptitious theft. The aggravating circumstances of the appellant’s offending were resorted to after his detection and are relatively less frightening and dangerous than the circumstances of the kind of offence considered by the Court in Place. Secondly it is a severe sentence having regard to the appellant’s youth, his deprived upbringing and the relatively short periods of detention and imprisonment he has previously served. True it is that the appellant’s history of prior offending is very bad but it does not preclude all hope for rehabilitation should a more incremental approach be taken to the length of the term of imprisonment he must serve. I would have imposed a sentence of four years six months but for the appellant’s plea of guilty. The appellant pleaded guilty more than four weeks after his first appearance in the Magistrates Court but before the matter was set for trial. Accordingly, the appellant’s sentence may be reduced by up to 30 per cent by reason of his guilty plea.[6] I would reduce his sentence, close to the maximum percentage, by 16 months. I would impose a head sentence of three years and two months and fix a non-parole period of one year and 11 months.[6] Criminal Law (Sentencing) Act 1988 (SA), s 10B(2)(b). KELLY J: I agree with the orders proposed by the Chief Justice for the reasons which he has given. BLUE J: I agree.