R v LINDSAY - [2015] SASCFC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LINDSAY
[2015] SASCFC 62
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Lovell)
1 May 2015
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
The Director of Public Prosecutions seeks permission to appeal against sentence - the respondent was convicted by a jury for two separate criminal incursions, both involving home invasions, thefts and violence and the second one involving rapes - the judge imposed a single sentence of four years imprisonment in respect of the first group of offences and a single sentence of six years in respect of the second group of offences, having first reduced each sentence by about one third - the total head sentence imposed was 10 years imprisonment with a non-parole period of six years and six months - whether the sentence was manifestly inadequate.
Held: neither the individual sentences imposed nor their total adequately reflected the extent and degree of the criminality involved in the respondent's offending - the sentence requires the intervention of this Court for the purposes of maintaining adequate standards of sentencing - permission to appeal granted - appeal allowed - respondent sentenced to a total head sentence of 13 years and four months with a non-parole period of eight years and three months.
Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(f), s 10(2)(b), referred to.
R v Bondarenko [2015] SASCFC 42, considered.

R v LINDSAY
[2015] SASCFC 62
Court of Criminal Appeal: Vanstone, Blue and Lovell JJ

VANSTONE J: The Director of Public Prosecutions seeks permission to appeal against a sentence imposed in the District Court for two separate criminal incursions, both involving home invasions committed by more than one intruder, thefts and violence, and the second one involving two rapes.
The final sentence imposed comprised the addition of two single sentences each reflecting the totality of offending at the respective scenes. That total was imprisonment for ten years with a non-parole period of six years and six months. It is accepted by counsel for the Director that the reductions from each indicative starting point of about one-third were appropriate in the circumstances of the case. The Director’s complaint is that the starting point for each single sentence was manifestly inadequate and that led, in turn, to manifest inadequacy in the head sentence and non-parole period ultimately imposed.
Background
The facts in relation to each group of offences appear clearly in the sentencing remarks. The first group of offences occurred on 6 October 2012. It comprised aggravated serious criminal trespass in a place of residence, aggravated robbery and assault.
At about 11 o’clock on the morning of that day the victim (V1) and her 11 year old son were inside their home when two aboriginal men wearing hooded…

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 LINDSAY

Details

AGLC: R v Lindsay [2015] SASCFC 62
Case: [2015] SASCFC 62
Decision Date: 1 May 2015

CaseChat Overview and Summary

The Director of Public Prosecutions sought permission to appeal against sentences imposed on the respondent, who had been convicted of two groups of offences involving home invasions, thefts, and violence, with the second group including rapes. The sentencing judge had imposed a total head sentence of 10 years imprisonment with a non-parole period of six years and six months, after applying a reduction of approximately one-third to individual sentences for each group of offences. The Director contended that the initial sentences were manifestly inadequate.

The legal issues before the Court of Appeal were whether the individual sentences imposed, and consequently the total head sentence and non-parole period, adequately reflected the gravity of the respondent's criminal conduct, and whether intervention was necessary to maintain appropriate sentencing standards. The Court was required to determine if the sentencing judge's assessment of the starting points for the sentences was manifestly inadequate, leading to an overall inadequate sentence.

The Court found that neither the individual sentences nor the total sentence imposed adequately reflected the extent and degree of the criminality involved. The Court reasoned that the sentencing judge's starting points for the offences were too low, which in turn resulted in a manifestly inadequate head sentence and non-parole period. The Court determined that its intervention was required to correct the sentence.

Permission to appeal was granted, and the appeal was allowed. The sentence imposed in the District Court was set aside and replaced with a total head sentence of 13 years and four months, with a non-parole period of eight years and three months, with the sentences for the two groups of offences to be served cumulatively.

Orders

Orders of the court

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Background

Background to the litigation

The final sentence imposed comprised the addition of two single sentences each reflecting the totality of offending at the respective scenes. That total was imprisonment for ten years with a non-parole period of six years and six months. It is accepted by counsel for the Director that the reductions from each indicative starting point of about one-third were appropriate in the circumstances of the case. The Director’s complaint is that the starting point for each single sentence was manifestly inadequate and that led, in turn, to manifest inadequacy in the head sentence and non-parole period ultimately imposed.Background The facts in relation to each group of offences appear clearly in the sentencing remarks. The first group of offences occurred on 6 October 2012. It comprised aggravated serious criminal trespass in a place of residence, aggravated robbery and assault. At about 11 o’clock on the morning of that day the victim (V1) and her 11 year old son were inside their home when two aboriginal men wearing hooded tops, sunglasses and bandanas kicked in the front door and forced their way in. One man held a crowbar and the other what V1 believed to be a cattle prod. Upon their entering V1 and her son ran out the back door. The offenders caught them in the back yard and threatened to hit the boy if they did not return inside. They went back into the house. The boy was taken to a bedroom by one offender and made to sit down there. The other offender demanded money from V1. She handed him money from her handbag. The two men then ransacked the house, taking a briefcase containing items. They then drove off in a black four-wheel drive vehicle. As the two men left the boy rang his uncle who lived nearby. The uncle took an axe handle and quickly walked to his sister’s home. At that point the offenders returned, driving into V1’s driveway. One of the men went back into the house apparently looking for a pair of sunglasses which had been left behind. Unable to find them he went back to the vehicle. At that point the offenders were confronted by the uncle. One of the men struck him from behind and he was knocked unconscious. That gave rise to the charge of assault. When he regained consciousness the offenders had left. He was found to be suffering a wound to one of his arms which required suturing. Later, the respondent’s DNA was found on the sunglasses. The serious criminal trespass was aggravated in three respects. First, the respondent knew that V1 was present in her home at the time. Secondly, the offence was committed with another person and thirdly, offensive weapons were used. The robbery was aggravated by the fact of its being committed in company and also by the use of offensive weapons. In addition, the assault committed for the purpose of making good the escape needed to be reflected in the sentence. The second group of offences occurred during the early hours of 19 October 2012. V2 was at home with her eight year old daughter when awakened by banging noises near her front door. By means of her security camera she saw three aboriginal men at the front door. Their faces were concealed by bandanas and beanies. They forced open the external screen door and then the wooden door. They entered the house and confronted V2. A cattle prod was placed close to her face and she was directed to kneel on the floor. Her head was covered. She was raped, although it was not clear by which intruder, and an acquittal was directed on that count. After a period of time V2 heard at least one of the offenders leaving the house through the front door. The respondent then lifted V2 to a sitting position on a lounge chair and raped her twice, including orally. Having ejaculated into her mouth he went to some lengths in an unsuccessful attempt to remove traces of his DNA. Soon afterward the respondent left the house. V2 discovered that several items had been stolen including iPhones, laptop computers, cameras, and other electrical equipment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLUE J

Using the rate of discount applied by the sentencing judge, the sentence imposed on the first group of offences becomes 5 years and 4 months and on the second group it becomes 8 years. These should be accumulated, giving a total of 13 years and 4 months. Using a slightly lesser proportion than that employed by the judge, the non-parole period becomes 8 years and 3 months. There is no occasion to further discount the sentence on account of a consideration of totality. This is the sentence I would impose.Conclusion In my view this Court’s intervention is required to correct the sentence imposed. Permission to appeal should be granted for that purpose and the appeal should be allowed. I would make the following orders:1.grant permission to appeal;2.allow the appeal;3.set aside the sentence imposed in the District Court;4.in its place impose single sentences of 5 years and 4 months imprisonment in respect of the first group of offences and 8 years imprisonment in respect of the second group of offences, those sentences to be served cumulatively, giving a total head sentence of 13 years and 4 months, with a non-parole period of 8 years and 3 months;5.direct that the sentence be deemed to have commenced (as before) on 23 October 2012. I agree. LOVELL J: I would allow the appeal. I agree with the reasons of and orders proposed by Vanstone J.

Ratio Decidendi

Legal Principle Established

Established by: BLUE J

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