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 62Court 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…
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- AGLC
- R v Lindsay [2015] SASCFC 62
- Case
- [2015] SASCFC 62
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: BLUE J
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