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