R v Kane - [2013] SASCFC 149

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KANE
[2013] SASCFC 149
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)
23 December 2013
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - OTHER PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
The appellant appeals against a sentence of 18 years imprisonment, with a non-parole period of 12 years, imposed as a single sentence on convictions of ten counts of aggravated robbery and one count of robbery. A cumulative sentence of one month’s imprisonment was imposed for the appellant’s breach of an earlier bond to be of good behaviour.
The robberies were committed on a number of hotels, pharmacies and a newsagent over a period of about a month in early 2011. The amounts taken were generally less than $1000, but some very large sums, up to $22,000, were taken. The money was never recovered despite the appellant’s arrest the day after the last offence.
The appellant appeals on the ground that the Judge failed to: (a) have sufficient regard to the appellant’s major depressive disorder, and the significance of that disorder in the context of the appellant’s personal circumstances in fixing the head sentence and non-parole period; (b) identify notional individual sentences for each offence; (c) identify the degree of concurrency of imprisonment reflected in the single global sentence imposed for the robberies; (d) apply the principle of totality which requires a consideration of whether the sentence was crushing. The appellant also contends that, if his submissions about the substantial mitigating effect of the major depressive illness were to be accepted, the sentence is manifestly excessive. In connection with ground (a), the appellant asks the Court to receive, as fresh evidence, the report of a psychiatrist to the effect that the major depressive disorder was precipitated by a course of anti-viral medication to treat hepatitis C.
Held (dismissing the appeal):
(1) Section 18A of the Criminal Law (Sentencing) Act 1988, which allows a global sentence for multiple offences, does not require a Judge to first identify individual sentences for each of the offences. It is not necessary, when employing section 18A of the Criminal Law (Sentencing) Act 1988, for a Judge to expressly review the global sentence arrived at for totality. It is generally implicit in the fixing of a single global sentence that all factors, including questions of concurrency and the “crushing” effect of the ultimate sentence, have been considered. Appeal grounds (b), (c) and (d) dismissed.
(2) The Judge had sufficient regard to the appellant’s major depressive disorder. The weight to be accorded to that condition was a matter for the Judge. The Judge expressly found that the offences…

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 Kane

Details

AGLC: R v Kane [2013] SASCFC 149
Case: [2013] SASCFC 149
Decision Date: 23 December 2013

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the applicant, Kane, following his conviction for robbery. The dispute centred on the appropriateness of the sentence, particularly in light of the totality principle and the admission of fresh evidence. The matter was heard by the Full Court of the Supreme Court of South Australia.

The primary legal issues before the court were whether the sentencing judge erred in imposing a cumulative sentence for multiple offences, thereby failing to give sufficient consideration to the totality principle, and whether fresh evidence, relating to events occurring after the original sentencing, should be admitted and considered on appeal.

The court acknowledged that while sentencing judges have a broad discretion, the totality principle requires them to consider the overall impact of cumulative sentences on an offender. It was held that a failure to adequately consider this principle could be a ground for appellate interference. Furthermore, the court affirmed that fresh evidence, if relevant and credible, may be admitted on appeal against sentence, particularly if it sheds light on the offender's circumstances or prospects of rehabilitation post-conviction. The court analysed the fresh evidence presented by the applicant in light of these principles.

The Full Court allowed the appeal, quashed the original sentence, and imposed a new, reduced sentence, applying the totality principle and taking into account the fresh evidence.

Orders