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 49Court of Criminal Appeal: Nicholson, Parker and Lovell JJ
NICHOLSON J.
Introduction
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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CaseChat Overview and Summary
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.
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