R v MCLAREN - [2009] SASC 225

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MCLAREN
[2009] SASC 225
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Kourakis)
6 August 2009
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
Application for permission to appeal from sentence imposed by District Court Judge of two years and three months with non-parole period of 12 months, commencing on 17 March 2009 - applicant pleaded guilty to attempted arson - whether head sentence manifestly excessive - whether Judge erred in failing to suspend sentence - whether Judge sufficiently considered circumstances in which the offence occurred - whether Judge erred in failing to give proper or adequate consideration to time applicant already spent in custody.
Held: By majority - application for permission to appeal granted - sentence imposed in District Court affirmed - sentence well within range of what was appropriate for this offending - order of Judge that sentence commence on 17 March 2009 set aside - order in lieu that sentence imposed commence on 17 November 2008 to account for four months spent in custody.
Criminal Law Consolidation Act 1935 (SA) s 20(4) and s 85(1); Criminal Law (Sentencing) Act 1988 (SA) s 30; Correctional Services Act 1982 (SA), referred to.
R v Pahuja (No 2) (1989) 59 SASR 551; Trotta v Police [2008] SASC 16; R v Lane (1990) 53 SASR 480; Sherlock v SA Police (Unreported, Supreme Court of South Australia, Perry J, 2 April 1996); Frank v Police (2000) 77 SASR 273; R v P,NJ (No 4) (2008) 183 A Crim R 461; R v Colson (1999) 73 SASR 407; PNJ v The Queen (2009) 83 ALJR 384, considered.

R v MCLAREN
[2009] SASC 225
Court of Criminal Appeal: Nyland, Gray and Kourakis JJ
NYLAND and GRAY JJ.

This is an application for permission to appeal from a sentence imposed by a District Court Judge on 17 March 2009. It was agreed that, if permission were to be granted, the appeal would be heard instanter.
The applicant was charged on Information with the offence of aggravated assault causing harm, contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA). It was alleged that on 20 March 2007 the applicant assaulted a man, M. The applicant was charged on the same information with the offence of attempted arson, contrary to section 85(1) of the Criminal Law Consolidation Act. That offence was alleged to have occurred on 21 March 2007. The applicant pleaded not guilty to the assault charge but guilty to the charge of attempted arson.
At relevant times, the applicant and M were both residing at a hostel occupied by some 10 or 12 people. At the trial of the assault charge there was evidence given as to difficulties between the applicant and M, leading to the incident…

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 MCLAREN

Details

AGLC: R v MCLAREN [2009] SASC 225
Case: [2009] SASC 225
Decision Date: 6 August 2009

CaseChat Overview and Summary

The case of R v McLaren involved an application for permission to appeal against a sentence imposed by a District Court Judge. The applicant had pleaded guilty to attempted arson and was sentenced to two years and three months, with a non-parole period of 12 months, commencing on 17 March 2009. The key issues before the court were whether the sentence was manifestly excessive, whether the Judge erred in failing to suspend the sentence, whether the Judge sufficiently considered the circumstances of the offence, and whether the Judge failed to adequately consider the time the applicant had already spent in custody. The court was required to assess the appropriateness of the sentence and the process followed in arriving at it.

The court considered the various factors that should be taken into account in sentencing, including the nature of the offence, the culpability of the offender, and the circumstances of the case. It noted that the applicant had struggled with illness and had made efforts to complete his tertiary education, which warranted some sympathy. However, the court emphasised that the choice of accelerants as a weapon was serious and deadly, and this factor alone justified the sentence imposed. The court also highlighted that the sentence was well within the range of what was appropriate for the offending and that the Judge had adequately considered the circumstances in which the offence occurred. The court determined that the Judge had not erred in failing to suspend the sentence or in not giving proper consideration to the time the applicant had already spent in custody.

The majority of the court granted the application for permission to appeal but dismissed the appeal itself. They affirmed the sentence imposed by the District Court but set aside the order that the sentence commence on 17 March 2009. Instead, the court ordered that the sentence commence on 17 November 2008 to account for the four months the applicant had already spent in custody. This adjustment aimed to ensure that the applicant received credit for the time served, without altering the overall sentence or its appropriateness. The court's decision underscored the importance of balancing various factors in sentencing and ensuring that the process is fair and just.

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

The appellant’s struggle to deal with his illness, whatever its cause, naturally excites sympathy. Moreover, his efforts to complete his tertiary education deserve much credit and support. However, as Dr Czechowicz observed, his “choice of weapons (accelerants) is serious and deadly”. Even if, as Dr Czechowicz suggests, the appellant was acting “in a dis-inhibited and violent fashion due to the effects of illicit drugs”, the appellant’s choice, albeit compromised, leaves no room for a sentence less than the one imposed.Conclusion I would give permission to appeal but would dismiss the appeal for the reasons I have given.

Ratio Decidendi

Legal Principle Established

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