R v MacGowan

Case [2012] SASCFC 138


SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MACGOWAN

[2012] SASCFC 138

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Anderson and The Honourable Justice Peek)

20 December 2012

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

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS

Appeal against sentence - appellant pleaded guilty to multiple property offences in the Magistrates Court - appellant sentenced in the District Court to six years and 14 days with a non-parole period of four years six months - appellant appeals on the grounds that the head sentence and the non-parole period are manifestly excessive.

Held: The head sentence imposed is not, in its totality, crushing or otherwise excessive - the non-parole period is manifestly excessive having regard to the appellant's youth and prospects of rehabilitation - appal allowed - sentence set aside - appellant re-sentenced to six years and 14 days with a non-parole period three years and six months.

Correctional Services Act 1982 (SA) s 27; Criminal Law (Sentencing) Act 1988 (SA) s 20B, referred to.
R v Delphin (2001) 79 SASR 429; Arnold v Samuels (1972) 3 SASR 585, discussed.

R v MACGOWAN
[2012] SASCFC 138

Court of Criminal Appeal:  Kourakis CJ, White and Stanley JJ

  1. KOURAKIS CJ:   The appellant was committed to the District Court for sentence after pleading guilty in the Magistrates Court.  The appellant appeals against a total sentence of six years and 14 days with a non-parole period of four years six months imposed in the District Court on his plea of guilty to multiple property offences.  The sentence was backdated to 7 March 2012, the day on which the appellant was taken into custody.

  2. The appellant complains that the sentence was manifestly excessive in all of the circumstances and in particular having regard to his youth.  The appellant was 19 years and five months when the offences were committed.  The appellant also contends that a non-parole period of 75 per cent of the head sentence is disproportionately long and fails to make adequate allowance for rehabilitation on parole.

    The Offences

  3. The offences of which the appellant was convicted, and the sentences imposed, are set out in tabular form below:

Item Date Offence Starting Point Head Sentence Accumulation Maximum
1 27.11.11 Suspended
sentence
4 months 14 days
Supervision
revoked
4 months
 14 days
2 6.3.12 Aggravated serious trespass (residence) 4 years
6 months
3 years
7 months
Cumulative
on (1)
Life imprisonment
3 6.3.12 Theft 18 months 14 months Concurrent
with (2)
10 years
4 6.3.12 Theft
motor vehicle
14 months 12 months Cumulative
on (2)
10 years
5 6.3.12 Arson 2 years
5 months
2 years Cumulative
on (2) Concurrent
with (4)
Life
imprisonment
6 7.3.12 Unlawful Possession Convicted without penalty
7 2.3.12 Drive Disqualified 5 weeks 1 month Cumulative
on (5)
6 months
8

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AGLC
R v MacGowan [2012] SASCFC 138
Case
[2012] SASCFC 138
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed by the District Court on the appellant, who had pleaded guilty to multiple property offences in the Magistrates Court. The District Court had sentenced the appellant to six years and 14 days imprisonment, with a non-parole period of four years and six months. The appellant sought to appeal this sentence, arguing that both the head sentence and the non-parole period were manifestly excessive.

The central legal issues before the court were whether the total head sentence imposed was unduly harsh, and whether the non-parole period was manifestly excessive, particularly in light of the appellant's personal circumstances.

The court found that the head sentence, when considered in its entirety, was not crushing or otherwise excessive given the nature of the offences. However, the court determined that the non-parole period was manifestly excessive, taking into account the appellant's youth and his demonstrated prospects for rehabilitation. Consequently, the appeal was allowed, the original sentence was set aside, and the appellant was re-sentenced to the same head sentence of six years and 14 days, but with a reduced non-parole period of three years and six months.

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

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Ratio Decidendi

Legal Principle Established

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