R v Lutze

Case [2010] SASCFC 45

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LUTZE

[2010] SASCFC 45

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Kourakis)

2 November 2010

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

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - OTHER MATTERS

Appellant found guilty by jury verdict in District Court of five offences: serious criminal trespass, aggravated serious criminal trespass, and three counts of theft - trial Judge sentenced the appellant to the one term of imprisonment of three years and 10 months pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) - non-parole period of one year and 10 months fixed - sentence not suspended - whether term of imprisonment was, in all the circumstances, manifestly excessive - whether Judge erred in failing to suspend the sentence.

Held: appeal allowed - sentence of imprisonment of three years and six months imposed - non-parole period of one year and eight months fixed - good reason to suspend term of imprisonment.

(Gray J): Judge proceeded on a misunderstanding of three matters - these three matters support the view that the Judge did not have adequate regard to the appellant's prospects of rehabilitation - would impose a sentence of imprisonment of two years and six months, with a non-parole period of 15 months.

(White J): error in antecedent report significant - open to the Judge to conclude that the character references were of limited assistance - open to Judge to reject submission that the appellant had no memory of the offending - the error in the antecedent report and the Judge’s erroneous belief that the appellant had not acknowledged his offending warrants this Court revisiting the sentence.

(Kourakis J): no error of substance identified with respect to Judge’s approach to character references - case for suspension of the sentence was a very strong one, but no need to decide if Judge in error in this respect, as error in antecedent report sufficient basis to reconsider the exercise of the sentencing discretion.

Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 6, s 134, s 169(1), s 248 and s 353(4), referred to.
Cameron v The Queen (2002) 209 CLR 339; Siganto v The Queen (1998) 194 CLR 656; R v Symonds [1999] SASC 217; R v Nylander (2003) 228 LSJS 24; R v van der Horst [2006] SASC 243; R v Jason [2002] SASC 201; R v Elliott (2001) 121 A Crim R 254; R v Major (1998) 70 SASR 488; R v Gale (1999) 74 SASR 235; R v Tu (2001) 216 LSJS 297; R v Waugh [2005] SASC 470; R v Markarian (2005)…

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R v Lutze [2010] SASCFC 45
Case
[2010] SASCFC 45
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentence imposed by the District Court on the appellant, who had been found guilty by a jury of serious criminal trespass, aggravated serious criminal trespass, and three counts of theft. The sentencing judge imposed a single term of imprisonment of three years and 10 months, with a non-parole period of one year and 10 months, and declined to suspend the sentence. The appellant contended that the sentence was manifestly excessive and that the judge had erred in failing to suspend it.

The Full Court of the Supreme Court of South Australia was required to determine whether the sentencing judge had erred in his assessment of the appellant's circumstances and prospects of rehabilitation, and consequently, whether the sentence imposed was manifestly excessive or whether the sentence should have been suspended. The court considered the appellant's criminal history, his personal circumstances including his intellectual abilities and psychological state, his employment history, and the evidence of his rehabilitation efforts and community support.

The Full Court allowed the appeal, finding that the sentencing judge had miscarried his discretion. The court noted that the judge had proceeded on a misunderstanding of certain matters, which led to an inadequate regard for the appellant's prospects of rehabilitation. The court acknowledged the seriousness of the offending, including two separate trespasses and the theft of valuable items, likely to fund a drug habit. However, it also took into account the appellant's limited intellectual abilities, his good work record, his stable relationship, family and community support, and evidence that he had ceased drug use. The court determined that a different sentence should be passed.

The Full Court substituted a sentence of imprisonment of two years and six months, with a non-parole period of 15 months. Crucially, the court suspended this sentence on the condition that the appellant enter into a good behaviour bond for two years and six months, to be supervised for 18 months, finding that there were good reasons to suspend the term of imprisonment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J WHITE J
In my view the overall circumstances, and in particular the prospect for rehabilitation referred to above, provide good reason for the suspension of the term of imprisonment on entry by the defendant into a good behaviour bond of two years and six months to be supervised for 18 months.[8][8] Section 38 of the Criminal Law (Sentencing) Act 1988 (SA).Conclusion I would allow the appeal. I would sentence the defendant to a term of imprisonment of two years and six months. I would fix a non-parole period of 15 months. I would suspend the sentence of imprisonment on the defendant entering into a good behaviour bond of two years and six months to be supervised for 18 months. Between 3 and 14 September 2008, the appellant broke into a shed at Ardrossan and stole some valuable shark jaws. About two weeks later, between 21 and 24 September 2008, in company with others, he broke into the same shed, intending to steal further shark jaws. However, the owner had moved the remaining shark jaws to a safer location, so the appellant and his companions instead stole a quantity of fishing and boating equipment, and a quantity of electrical tools. As a result of the first incident, the appellant was charged with serious criminal trespass (non-residential), contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and with theft, contrary to s 134 of the CLCA. As a result of the second incident, the appellant was charged with aggravated serious criminal trespass (non-residential) and with two counts of theft. The appellant was convicted by a jury of each offence. The same jury found one of the appellant’s co-accused guilty of the two thefts arising from the second incident but not guilty of the aggravated serious criminal trespass charge. A third co-offender had earlier pleaded guilty to all three charges arising out of the second incident, and he was sentenced separately. Acting under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA), the Judge imposed one sentence on the appellant for all offences of three years and 10 months, and fixed a non-parole period of one year and 10 months. He refused to suspend that sentence. Had it not been for the periods which the appellant had spent in custody and on home detention bail before being sentenced, the Judge said that he would have imposed a head sentence of four years imprisonment and a non-parole period of two years. The appellant appeals against the sentence, contending that it is manifestly excessive. He submits in the alternative that the Judge made a number of specific errors in reaching his sentence and, further, that the Judge erred by not suspending the sentence.The Appellant’s Personal Circumstances The appellant was 26 years of age when he committed the offences, and 28 years of age at the time of sentence. The Judge had evidence that he came from a good hard-working family on the Yorke Peninsula and that he had a good employment history. In addition, there was evidence from a psychiatrist that the appellant was of borderline intelligence and that he had experienced some psychological disturbance in his past. The appellant was educated to Year 9 level and had been expelled from school at age 16.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J, WHITE J

Having regard to the foregoing, it is apparent that the Judge’s sentencing discretion miscarried. Reconsideration Section 353(4) of the Criminal Law Consolidation Act 1935 (SA) addresses this Court’s powers on an appeal against sentence:Subject to subsection (5), on an appeal against sentence, the Full Court must—(a) if it thinks that a different sentence should have been passed—(i) quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or(ii) quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or(b) in any other case—dismiss the appeal. The defendant’s offending was serious. There were two separate trespasses on the victim’s property. They occurred about a week apart and the second trespass was committed in company. Items of value were stolen. The defendant appears to have committed the thefts to raise money to fund a drug habit. The defendant had a criminal antecedent history, including a number of driving and traffic offences and convictions for disorderly behaviour. Of particular relevance is a prior offence for dishonesty. However, on review that offence can be described as minor as the defendant was discharged without penalty. The defendant’s personal antecedents were addressed by the sentencing Judge. The defendant had an involvement with drug use and this led him into criminal activity including the present offending. There was evidence before the Court however that he had ceased any involvement in illicit drugs by early 2009. It was said that he had significantly changed his behaviour and recognised the dangers of any involvement in drug use. There was psychological evidence before the Court that the defendant was a person with limited intellectual abilities and functioned around the third percentile of the age equivalent population. His problem solving skills were said to be the developmental equivalent of those of an eight year old. Notwithstanding his limited intellectual abilities, the defendant has an excellent work record and appears to have the ability to cope well within a small rural community. He is now aged 28 years, has a partner and two young children. Evidence before the Court suggested that the defendant had good prospects for rehabilitation. His stable relationship, wider family support, community support and good work record confirm the psychological opinion with respect to his rehabilitation. The references to his good character, coming from a wide cross-section of the rural community are testament to that community support. Having regard to the circumstances of the defendant’s offending and his criminal and personal antecedents it was appropriate for the defendant to be sentenced to a term of imprisonment. This is a suitable case for imposing the one penalty for all offending pursuant to section 18A of the Sentencing Act.[7] I would make an allowance of two months on account of the time spent in custody and on home detention prior to sentencing in the District Court. I would make a further allowance of four months on account of time spent in custody since sentencing. I would impose a head sentence of two years and six months. I would fix a non-parole period of 15 months. [7] See the discussion with respect to the use of section 18A of the Criminal Law (Sentencing) Act 1988 (SA) in R v Major (1998) 70 SASR 488; cf R v Symonds [1999] SASC 217 at [22] (Doyle CJ, with whom Perry and Mullighan JJ agreed); see also R v Nylander (2003) 228 LSJS 24 at [78]-[85] (Bleby J); R v van der Horst [2006] SASC 243 at [54]-[57]; see also R v Jason [2002] SASC 201 at [20]-[22] (Gray J with whom Doyle CJ and Williams J agreed); R v Elliott (2001) 121 A Crim R 254 at [74]-[84] (Nyland J agreeing).