R v Lumsden - [2020] SASCFC 3

Supreme Court of South Australia

(Court of Criminal Appeal)

R v LUMSDEN

[2020] SASCFC 3

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)

30 January 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

Application by the Director of Public Prosecutions for permission to appeal against sentence imposed by a Judge in the District Court – where the appellant pleaded guilty to a number of offences including attempted aggravated robbery – whether the sentence imposed was manifestly inadequate in respect of the attempted aggravated robbery.
Held (per Bampton J, Peek and Lovell JJ agreeing): Permission to appeal granted – appeal allowed – the sentence imposed by the Judge was manifestly inadequate – sentence is set aside and the appellant is resentenced.
Sentencing Act 2017 (SA) s 26, referred to.
R v Place (2001) 81 SASR 395; R v Newton (2002) 128 A Crim R 185; R v Nemer (2003) 87 SASR 168; Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212, considered.

R v LUMSDEN

[2020] SASCFC 3

Court of Criminal Appeal: Peek, Bampton and Lovell JJ

PEEK J: I agree with the orders proposed by Bampton J and with her reasons.
BAMPTON J: The Director of Public Prosecutions (“the Director”) seeks permission to appeal the sentence imposed on Bradley Caleb Lumsden for an attempted aggravated robbery, contending that the sentence imposed from a starting point of six months is a manifestly inadequate penalty.

Background

On 22 April 2016, Mr Lumsden was sentenced for two counts of trafficking in a controlled drug. The sentence of one year and nine months’ imprisonment with a non-parole of nine months was suspended upon Mr Lumsden entering into a bond to be of good behaviour for a period of three years (“the bond”). Mr Lumsden breached the bond by committing property damage on 2 March 2018 and 14 June 2018, disorderly behaviour and carrying an offensive weapon on 14 June 2018, two counts of assault on 25 July 2018, failing to comply with a bail agreement entered into 10 August 2018 and committing attempted aggravated robbery on 10 April 2019 (“the offending”).

The circumstances of the offending

Two counts of assault

At a quiz night at the Village Tavern in Golden Grove on 25 July 2017, Mr Lumsden and another male assaulted two adult brothers in the bathroom. Mr Lumsden recognised one of the brothers as a person who had bullied him at school. Mr Lumsden and his male associate proceeded to punch and kick the pair before they escaped.

First property damage

Following an argument with his sister on 2 March 2018, Mr Lumsden kicked and dented a door of his sister’s car.

Disorderly behaviour and carrying an offensive weapon

On 14 June…

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 Lumsden

Details

AGLC: R v Lumsden [2020] SASCFC 3
Case: [2020] SASCFC 3
Decision Date: 30 January 2020

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Lumsden, in the District Court of South Australia. Lumsden had pleaded guilty to one count of aggravated assault occasioning actual bodily harm. The Crown contended that the sentence of 12 months imprisonment, suspended upon the respondent entering into a recognisance of $500 to be of good behaviour for two years, was manifestly inadequate.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the District Court judge erred in law by imposing a suspended sentence, thereby failing to adequately reflect the seriousness of the offence and the need for general deterrence. The Court was required to consider the principles governing appeals against sentence by the Crown and the appropriate sentencing considerations for aggravated assault occasioning actual bodily harm.

The Full Court allowed the Crown's appeal, finding that the District Court judge had given undue weight to certain mitigating factors and insufficient weight to the objective seriousness of the offence and the need for general deterrence. The Court noted that while the respondent's remorse and prior good character were relevant, they did not justify suspending a sentence of imprisonment for an offence of this nature. The Court applied the principle that a sentence must reflect the gravity of the crime and serve the purposes of punishment, rehabilitation, and deterrence.

Consequently, the Full Court varied the sentence imposed by the District Court. It quashed the suspended sentence and ordered that the respondent be sentenced to 12 months imprisonment, with a non-parole period of six months.

Orders

Orders of the court

See [51-52]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.