R v Meschede

Case [2016] SASCFC 49

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MESCHEDE

[2016] SASCFC 49

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)

9 May 2016

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - GENERALLY

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

Appeal against sentence. On 16 September 2015, the appellant pleaded guilty to one count of aggravated serious criminal trespass and one count of theft. The appellant and a co-accused engaged in a joint criminal enterprise by entering sheds on a farming property in rural South Australia and stealing various items, including firearms.

The appellant was committed to the District Court for sentence and, on 15 December 2015, a Judge sentenced the appellant, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), to 21 months imprisonment with a non-parole period of 10 months. The Judge declined to suspend the term of imprisonment.

The appellant has appealed against the sentence on two grounds: that the head sentence and non-parole period were manifestly excessive; and that the Judge had erred in failing to suspend the term of imprisonment.

Held per Nicholson J (Parker and Lovell JJ agreeing) dismissing the appeal:

1.  The starting point for the head sentence was within the discretion available to the Judge and is not manifestly excessive.

2.  The non-parole period, being less than 50 per cent of the final head sentence, was within the range available to the Judge and is not manifestly excessive.

3.  The Judge’s refusal to suspend the term of imprisonment was, in the circumstances, within the discretion available to the Judge.

Criminal Law Consolidation Act 1935 (SA) s 134, s 169; Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 18A, referred to.
The Queen v Morse (1979) 23 SASR 98; R v Delphin [2001] SASC 203, (2001) 79 SASR 429, discussed.
House v The King [1936] HCA 40, (1936) 55 CLR 499; R v Horstmann [2010] SASC 103; R v Lutze [2014] SASCFC 134, (2014) 121 SASR 144; R v Place [2002] SASC 101, (2002) 81 SASR 395; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v McPhee [2014] SASCFC 107; R v Smith [2002] SASC 330; R v Wacyk (1996) SASR 530, considered.

R v MESCHEDE
[2016] SASCFC 49

Court of Criminal Appeal:   Nicholson, Parker and Lovell JJ

NICHOLSON J.

Introduction

  1. The appellant and a co-accused were charged jointly with the offences of aggravated serious criminal trespass in a non-residential building[1] and theft.[2] The appellant pleaded guilty to both offences and, on 15 December 2015, a District Court Judge sentenced the appellant, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988

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R v Meschede [2016] SASCFC 49
Case
[2016] SASCFC 49
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by the appellant, R v Meschede, before the Full Court of the Supreme Court of South Australia, comprising Nicholson, Parker and Lovell JJ. The dispute arose from the sentence imposed on the appellant following his guilty pleas to offences involving a joint criminal enterprise to enter sheds on a farming property and steal various items, including two quad bikes, four firearms, tools, and an Isuzu truck.

The appellant contended that the prison term imposed was manifestly excessive and that the sentencing judge erred by failing to suspend the sentence. These grounds were framed as outcome errors, with no reliance placed on any alleged process errors during the sentencing hearing. The court was therefore required to determine whether the sentence imposed was unreasonable or plainly unjust, and whether the refusal to suspend the sentence fell outside the proper exercise of the sentencing judge's discretion.

The Full Court dismissed the appeal. It reasoned that the offending was serious, involving a pre-meditated joint criminal enterprise and the theft of significant property, including firearms. The appellant was not a first offender and had a history of similar and more serious offending, which weighed against leniency. The court found that the need for both personal and general deterrence was manifest. Furthermore, the sentencing judge's approach to the question of suspension was deemed correct, as he had considered all relevant factors and not taken irrelevant ones into account. The refusal to suspend the sentence was considered to be within the proper exercise of the sentencing judge's discretion.

Orders

Orders of the court

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Background

Background to the litigation

During the hearing of the appeal, counsel for the appellant conceded that no reliance was being placed on any alleged “process” error; rather, the Judge’s sentence was reflective of two outcome errors in that, in all the circumstances, the prison term imposed was manifestly excessive, being unreasonable or plainly unjust, and the failure to suspend fell outside the discretion available to the Judge. I would dismiss the appeal for the reasons that follow. Circumstances of the offending and background to the pleas In the early hours of the morning of 26 April 2015, the appellant and the co-accused engaged in a joint criminal enterprise to enter sheds on a farming property in rural South Australia and to steal various items. The appellant’s and co-accused’s activities were, in part, captured by footage from a covert infra-red motion detection camera. The appellant and the co-accused were seen to spend almost three and three quarter hours at the property during which they stole two quad bikes, four firearms, a welder and battery charger, various tools and a toolbox and an Isuzu truck. The truck was parked between the two sheds from which the other property was taken and was used by the appellant and co-accused to transport some of the other stolen property away. It appears to have been accepted by the Judge that the appellant entered a three-sided but otherwise open implement shed from which he took the two quad bikes, whereas the co-accused broke into a closed shed and took the balance of the property, including the firearms from a locked steel cabinet which was opened using bolt cutters. Whilst this might have been the division of labour on the night, the appellant’s offending embraced all aspects of the serious criminal trespass and the stealing of all of the property on the basis that he and the co-accused engaged in a joint criminal enterprise. The appellant has maintained that he did not know that the co-accused had found and taken the firearms. However, he was part of a pre-meditated joint enterprise to steal whatever each person physically took. Furthermore, he soon would have become aware of the existence of the firearms and at no time did he take steps to either return the firearms or hand them into the police. Indeed, very little of the property, apart from the truck, has been recovered. In the circumstances, the fact that the appellant may not have been aware at the time that the firearms were being stolen carries little, if any, weight by way of mitigation. The appellant was interviewed by the police four days after committing the offences and provided the police with an alibi. The interview was suspended and the alibi checked. It was found to be a lie and upon being confronted with this, the appellant agreed to recommence the interview and made admissions sufficient such that pleas of guilty necessarily would follow. On 16 September 2015, the appellant entered pleas of guilty in the Magistrates Court. The timing of the pleas was such that he became entitled to a discount of up to 30 per cent with respect to any prison sentence imposed.[7] A discount of 30 per cent was allowed and, as such, the appellant obtained the maximum credit available for the utilitarian value of his plea. However, it cannot be said that the appellant was frank and fulsome in the cooperation he provided during the investigation and the sentencing process. I will return to this issue. However, I indicate for the present that, whilst he is not to be more severely punished because of this, it is, together with other matters referred to later in these reasons, relevant to an assessment of the appellant’s prospects for rehabilitation and, ultimately, to the question of leniency. [7] Section 10C of the Criminal Law (Sentencing) Act 1988 (SA).The Judge’s approach to sentence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J (dissent)
The Judge approached the question of suspension correctly. He did not overlook any relevant factors and did not take into account irrelevant factors. It is not sufficient to suggest that a different Judge or this Court, on appeal, by weighting the various relevant factors differently might come to a different result. The offending was serious and the appellant was not a first offender and had a background of similar and more serious offending. The need for both personal and general deterrence was manifest. The refusal to suspend the sentence was within the discretion available to the Judge. I would dismiss this ground of appeal.Conclusion I would dismiss the appeal. I would dismiss the appeal. I agree with the reasons of Nicholson J. I would dismiss the appeal. I agree with the reasons of Nicholson J.

Ratio Decidendi

Legal Principle Established

Established by:

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