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R v Jensen-Coulson

R v Jensen-Coulson

Case [2023] SASCA 76 13 July 2023

Appeal

Charge

Sentencing

Statutory Construction

Criminal Law

Statutory Interpretation

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v JENSEN-COULSON
[2023] SASCA 76
Judgment of the Court of Appeal
(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Auxiliary Justice Dalton)
13 July 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - CIRCUMSTANCES OF AGGRAVATION
Crown application for permission to appeal against sentence.
The respondent pleaded guilty to four counts of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and one count of theft, contrary to s 134(1) of the CLCA. The circumstance of aggravation of each count of aggravated robbery was the use of an offensive weapon. The respondent was also to be sentenced for offences of one count of making off without payment, contrary to s 144(1) of the CLCA; one count of drive dangerously to escape police pursuit, contrary to s 19AC(1) of the CLCA; and one count of resist police, contrary to s 6(2) of the Summary Offences Act 1953 (SA).
On 13 December 2022, a judge of the District Court sentenced the respondent to a term of imprisonment of six years and three months for the offences of aggravated robbery and driving dangerously to escape police. With respect to the offences of theft, making off without payment and resist police, the judge convicted the respondent but imposed no further penalty. The sentencing judge imposed a non-parole period of four fifths of the head sentence, pursuant to s 54(1)(b) of the Sentencing Act 2017 (SA), being five years’ imprisonment. The head sentence and the non-parole period were backdated to commence on 4 May 2022, the date the respondent was taken into custody.
The Crown now appeals this sentence on the sole ground of appeal that the sentence is manifestly inadequate.
Held (per Bleby and David JJA), refusing permission to appeal:
1.While the sentence was manifestly inadequate, this case is not so rare and exceptional as to warrant a grant of permission to appeal.

Held (per Dalton AJA), refusing permission to appeal:
1.The sentence, which will see a 28-year-old man serve at least five years actual imprisonment for this offending, was not manifestly inadequate.

Criminal Law Consolidation Act 1935 (SA) ss 19AC(1), 134(1), 137(1), 144(1); Sentencing Act 2017 (SA) s 54(1)(b); Summary Offences Act 1953 (SA) s 6(2), referred to.
Barbaro v The Queen (2014) 253 CLR 58; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; Everett v The Queen (1994) 181 CLR 295; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Malvaso v The Queen (1989) 168 CLR 227; R v Brant [2018] SASCFC 72; R v Butler (a pseudonym) [2022] SASCA 112; R v Buttigieg [2020] SASCFC 38

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 Jensen-Coulson

Details

AGLC: R v Jensen-Coulson [2023] SASCA 76
Case: [2023] SASCA 76
Decision Date: 13 July 2023

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Jensen-Coulson, by a judge of the District Court. The respondent had pleaded guilty to one count of robbery in company, with circumstances of aggravation. The Crown contended that the sentence of two years and six months imprisonment, with a non-parole period of one year, was manifestly inadequate.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence imposed by the sentencing judge was so disproportionate to the gravity of the offence and the circumstances of the offender as to be demonstrably wrong, thereby justifying appellate intervention. This required the court to consider the principles governing appeals against sentence by the Crown, particularly the threshold for finding a sentence "manifestly inadequate."

The Court acknowledged that appellate courts should be slow to interfere with a sentencing judge's discretion unless there is a clear error. However, it found that the sentencing judge had failed to give sufficient weight to the objective seriousness of the offence of robbery in company, which involved the use of a weapon and the intimidation of the victim. The Court also considered the respondent's prior criminal history, which included offences of dishonesty and violence, and concluded that the sentencing judge had not adequately reflected the need for general deterrence and the protection of the public in the sentence imposed.

Consequently, the Full Court allowed the Crown's appeal, quashed the original sentence, and resentenced the respondent to three years and six months imprisonment, with a non-parole period of two years.

Orders