R v Jones - [2005] SASC 183

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JONES
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Layton)
26 May 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - HABITUAL CRIMINALS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Appeal against sentence - appellant pleaded guilty to a number of driving offences and a number of dishonesty offences including aggravated robbery with an offensive weapon - appellant was sentenced to a total term of imprisonment of three years, 10 months and 28 days, a non-parole period of two years was fixed - fines totalling $3,750 were imposed and the appellant was disqualified from holding or obtaining a driver’s licence for a period of 12 months.
Appeal on grounds that sentencing judge erred in failing to backdate a sentence of imprisonment to the date when the appellant was first taken into custody; erred in imposing sentences of imprisonment for driving unauthorised; erred in imposing monetary penalties totalling $3,750 when also imposing immediate custodial sentence.
Crown conceded three errors of sentencing princple identified above and agreed that the appellant should be resentenced.
Consideration of the status of the Court record of sentence imposed - consideration of commencement date of sentence - discussion of section 74 of the Motor Vehicles Act 1959 (SA) and the meaning of 'subsequent offence' - consideration of monetary penalties.
Held: appeal allowed for the purpose of making the following orders: set aside the sentences imposed with respect to the two offences of driving whilst unauthorised; with respect to the April 2004 offence of unauthorised driving, appellant disqualified from holding or obtaining a driver’s licence for a period of 12 months; with respect to the driving offences committed in May 2004, appellant disqualified from holding or obtaining a driver’s licence for a period of 12 months to commence at the expiration of the disqualification the subject of the order in respect of the April 2004 offending; appellant to serve a total term of imprisonment of three years, two months and 28 days; a non-parole period of two years fixed - head sentence and the non-parole period are backdated to commence on 13 September 2004.
Criminal Law (Sentencing) Act 1988 (SA) s 13, s 18A and s 30(6); Motor Vehicles Act 1959 (SA) s 74, referred to.
R v Pahuja (No 2) (1988-1989) 50 SASR 551; R v Lane (1989-1990) 53 SASR 480; Sherlock v SA Police Unreported S 5549 2 April 1996; Frank v Police (2000) 77 SASR 273; R v Nguyen (2002) 84 SASR 190; Police v Nowak (2000) 76 SASR 551; O'Hara v Harrington [1962] Tas SR 165; R v Miller (2000) 76…

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 Jones

Details

AGLC: R v Jones [2005] SASC 183
Case: [2005] SASC 183
Decision Date: 26 May 2005

CaseChat Overview and Summary

The case of R v Jones involved an appeal against the sentence imposed by the District Court. The appellant had pleaded guilty to a series of driving offences and dishonesty offences, including aggravated robbery with an offensive weapon. The appellant was sentenced to a total term of imprisonment of three years, 10 months, and 28 days, with a non-parole period of two years. Additionally, fines totalling $3,750 were imposed, and the appellant was disqualified from holding or obtaining a driver’s licence for a period of 12 months.

The primary legal issue before the court was whether the non-parole period of two years was manifestly excessive, considering the reduced head sentence due to the acknowledged errors in the original sentencing. The court had to balance the severity of the crimes, the appellant's criminal history, and the mitigating factors, including the guilty pleas. The court also had to consider the principle of proportionality in sentencing and the necessity to ensure that the sentence reflects the gravity of the offences and the appellant's culpability.

In determining the appeal, the court found that the non-parole period of two years was appropriate. The offence of aggravated robbery with an offensive weapon was serious and committed while the appellant was on a suspended sentence bond. The appellant's criminal antecedents further indicated a need for a robust sentence. Despite the concessions made by the Crown, the court concluded that the non-parole period should remain at two years. However, the sentences for the two unauthorised driving offences were set aside, reducing the total term of imprisonment to three years, two months, and 28 days. The sentence and non-parole period were backdated to the date of the appellant's first custody, 13 September 2004.

The court's final orders included setting aside the sentences for the unauthorised driving offences, imposing disqualification periods for the appellant's driver’s licence, reducing the total term of imprisonment, and maintaining the non-parole period of two years. The appeal was allowed to make these specified alterations to the original sentence.

Orders

Orders of the court

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Background

Background to the litigation

These concessions then left the remaining issue - namely, whether a non-parole period of two years was manifestly excessive, having regard to the reduced head sentence when effect was given to the acknowledged errors.Background On 17 December 2004, the appellant was sentenced in the District Court in respect of a number of offences to a total term of imprisonment of three years, 10 months and 28 days. A non-parole period of two years was fixed. In addition, fines were imposed totalling $3,750 and the appellant was disqualified from holding or obtaining a driver’s licence for a period of 12 months. The appellant pleaded guilty to all offences. In imposing terms of imprisonment, the Judge made reductions of between one quarter and one third on account of the early pleas.The Offences The offending, the subject of the charges, took place between April and August 2004. On 25 April 2004, the appellant drove a motor vehicle when unauthorised and drove an unregistered and uninsured vehicle. With respect to the charge of driving when unauthorised, the Judge imposed a term of imprisonment of four months. But for the plea of guilty a sentence of six months’ imprisonment would have been imposed. On 3 May 2004, the appellant again committed the offence of driving a motor vehicle whilst unauthorised and of driving an unregistered and uninsured motor vehicle. She also pleaded guilty to failing to give particulars to a specified person at the scene of the crash. With respect to the offence of driving a motor vehicle whilst unauthorised, the appellant was sentenced to a term of imprisonment of four months. But for her plea of guilty, the sentencing Judge would have imposed a sentence of six months’ imprisonment. On 19 May 2004, the appellant committed the offence of aggravated robbery with an offensive weapon. The circumstances of the offending were summarised by the sentencing Judge as follows:On the morning of 19 May, you went to a pharmacy that was situated near your home at Seacombe Gardens. You were armed with a knife, you entered the shop and placed the knife on the counter. Members of the staff in the shop noticed that you appeared agitated. Upon putting the knife on the counter you demanded a drug called Zantac. You were told there was none in stock. You then demanded Serepax. The manager of the pharmacy, Mr Brian Goddard gave you several boxes of Serepax that were worth about $15.00.Employees of the pharmacy recognised you, because you were a regular customer. They located the prescription lodged by you the day before for the drug Zantac, and they drew that prescription form to the attention of the police. You were arrested later that day. ... .At the time of this offence you were addicted to heroin and tranquillisers. You’d been using those drugs on and off since you were 20 years old. You are now 33.The Judge imposed a sentence of three years’ imprisonment. But for the plea of guilty, he would have imposed a head sentence of four years. The offence of aggravated robbery with an offensive weapon was committed during the currency of a suspended sentence bond imposed on 9 August 2002. That sentence was in respect to an offence of larceny when the appellant was sentenced to imprisonment for 28 days. The sentencing Judge revoked the suspended sentence and as a result the appellant became liable to serve the 28-day term of imprisonment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for the Crown was correct to submit that the non-parole period fixed by the Judge was the minimum that could be expected by this appellant with respect to the offence of aggravated robbery with an offensive weapon. Not only was the offence serious, but it was also committed in circumstances that involved a breach of a suspended sentence bond. In addition, there were the two terms of imprisonment for the larceny offences. The appellant’s criminal antecedents militated against leniency. A two-year non-parole period should be fixed.Conclusion Having regard to the concessions made by the Crown, it is appropriate to allow the appeal. The two sentences of four months’ imprisonment imposed in respect of the driving without authority offences should be set aside. As a result, the total sentence to be served by the appellant should be reduced by eight months to a term of three years, two months and 28 days. The sentence and the non-parole period should both commence on 13 September 2004, the date on which the appellant was first taken into custody. The appeal is allowed for the limited purpose of making the following orders:(1)Set aside the sentences imposed with respect to the two offences of driving whilst unauthorised.(2)With respect to the April 2004 offence of unauthorised driving, order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 12 months.(3)With respect to the driving offences committed in May 2004, order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 12 months to commence at the expiration of the disqualification the subject of the order in respect of the April 2004 offending.(4)Having regard to the sentence of three years imposed for the offence of aggravated robbery with an offensive weapon and the cumulative sentences of larceny, each of one of month and the revoked 28 days suspended sentence, the appellant is obliged to serve a total term of imprisonment of three years, two months and 28 days. A non-parole period of two years should be fixed.(5)The head sentence and the non-parole period are backdated to commence on 13 September 2004, the date on which the appellant was first taken into custody.

Ratio Decidendi

Legal Principle Established

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