R v Milne - [2011] SASCFC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MILNE
[2011] SASCFC 150
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
6 December 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT
Appeal against sentence - defendant pleaded guilty to offences of aggravated causing harm, driving whilst disqualified, unlawfully on premises and illegal use - on 24 May 2011 District Court Judge sentenced the defendant pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the one term of imprisonment of 19 months - where the defendant's offending breached two good behaviour bonds - the first bond was entered into on 4 March 2009 in relation to offending occurring between 2006 and 2008, had been extended by the Court on two occasions, and related to offences of illegal use of motor vehicles, driving dangerously to avoid police pursuit, driving whilst disqualified, break and enter and theft, and in respect of which sentencing Judge on 24 May 2011 imposed the one sentence of imprisonment of 38 months - the second bond, a suspended sentence bond entered into on 24 August 2010, suspended a 12 month term of imprisonment imposed for aggravated serious criminal trespass in a non-residential building - where the sentencing Judge on 24 May 2011 revoked the suspended 12 month sentence and considered that the sentences of 19 months, 38 months and 12 months should be served cumulatively, making the total period of imprisonment to be served five years and nine months - a non-parole period of two years and nine months was fixed - the Judge backdated the sentence to commence on 14 October 2010 when the defendant was taken into custody - where information on appeal disclosed that the defendant, by 4 March 2009, had spent 15 months in custody - complained on appeal that Judge proceeded under a misapprehension of fact, arising because he had not been informed of this period in custody - accepted on appeal by both parties that sentences imposed should be set aside and the defendant resentenced.
Held: (Gray and Sulan JJ) Appeal allowed - sentences of imprisonment of 19 months and 38 months, set aside - suspended sentence revoked and the time spent in custody treated as discharging the defendant’s obligation to serve this time in custody - defendant released on his entry into a supervised three-year good behaviour bond.
(Blue J) In re-sentencing, would impose a sentence in respect of the 2010 offences to nine months imprisonment, leave undisturbed the sentences of 38 months and 12 months, and fix a non-parole period of 25 months - would order that the sentences be backdated to have commenced on 14 July 2009.
Criminal Law Consolidation Act 1935 (SA) s 19(2), s 30(1), s 30(2)(a), s…

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 Milne

Details

AGLC: R v Milne [2011] SASCFC 150
Case: [2011] SASCFC 150
Decision Date: 6 December 2011

CaseChat Overview and Summary

The appeal concerned the sentencing of the defendant, Milne, by a District Court Judge in South Australia. Milne had pleaded guilty to several offences, including aggravated causing harm, driving whilst disqualified, unlawfully on premises, and illegal use. His sentencing was complicated by breaches of two previous good behaviour bonds. The sentencing Judge imposed a cumulative term of imprisonment of 19 months for the current offences, revoked a previously suspended 12-month sentence for aggravated serious criminal trespass, and imposed a 38-month sentence for offences committed between 2006 and 2008, which had been subject to a good behaviour bond. The total head sentence was five years and nine months, with a non-parole period of two years and nine months, backdated to commence on 14 October 2010. The appeal was brought on the basis that the sentencing Judge had proceeded under a misapprehension of fact, having not been informed that the defendant had already spent 15 months in custody by 4 March 2009. Both parties accepted that the sentences should be set aside and the defendant resentenced.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing Judge had erred in his assessment of the total period of imprisonment to be served, particularly in light of the defendant's pre-sentence custody. The court was required to determine the appropriate sentence, considering the defendant's offending, the breaches of good behaviour bonds, and the time already spent in custody. A further issue was the application of section 32 of the Criminal Law (Sentencing) Act 1988 (SA), which generally requires a single non-parole period to be imposed in respect of total sentences.

Gray and Sulan JJ allowed the appeal, reasoning that the defendant had already spent a significant period in custody, totalling almost two years and four months without parole. They considered this period to be a sufficient custodial punishment for all the offending, including the revoked suspended sentence. Consequently, they set aside the sentences of 19 months and 38 months imprisonment, revoked the suspended sentence, and treated the time already spent in custody as discharging the defendant's obligation to serve those sentences. The defendant was released upon entering into a supervised three-year good behaviour bond. Blue J, in dissent, would have imposed a nine-month sentence for the 2010 offences, left the other sentences undisturbed, fixed a non-parole period of 25 months, and backdated the sentences to 14 July 2009.

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 defendant has now spent a total of almost two years and four months in custody. He has done so without the benefit of parole. In the case of a young man this equates to a head sentence of something of the order of five years imprisonment. Having regard to the time spent in custody we would not sentence the defendant to any further term of imprisonment. We consider that the total time spent in custody is a sufficient custodial punishment for all the offending including the revoked suspended sentence of imprisonment. The only further sentence is the requirement that the defendant enter into a three-year supervised good behaviour bond. We repeat that the defendant needs guidance and supervision. This need should be reflected in the terms of the bond. It might be expected that he would receive at least the same level of guidance and supervision as if on parole.Conclusion We allow the appeal. We set aside the sentences of imprisonment of 19 months and 38 months. We revoke the suspended sentence and treat the time spent in custody as discharging the defendant’s obligation to serve this time in custody. We would not disturb the driver’s licence disqualification imposed by the sentencing Judge. We release the defendant on his entry into a supervised three-year good behaviour bond.BLUE J: The relevant facts are set out in the judgment of Gray and Sulan JJ.Sentencing circumstances The sentencing Judge was required to sentence the appellant/defendant for:(a)the 2006 to 2008 offences in respect of which the defendant entered into a bond in the Magistrates Court on 4 March 2009;(b)the 2009 offence in respect of which the defendant had already been sentenced with a suspended sentence imposed on 24 August 2010; and(c)the 2010 offences. In these complex circumstances, s 32 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) effectively requires that a single non-parole period be imposed in respect of the total sentences imposed by the sentencing Judge in respect of all offences.2006 to 2008 Offences: error by sentencing Judge The sentencing Judge imposed a single sentence of 38 months imprisonment for these offences pursuant to s 18A of the Act. On appeal there is no challenge to the appropriateness of utilising s 18A in the manner in which the sentencing Judge did. The challenge is that the sentencing Judge gave inadequate weight to the defendant’s intellectual disability and that the sentence is manifestly excessive. The offences comprised:(a)illegal use on 16 and 28 December 2006, in respect of which the sentencing Judge fixed a notional sentence of three and six months; (b)serious criminal trespass and associated theft on 22 December 2006, in respect of which the sentencing Judge fixed a notional sentence of 15 months (including one count of illegal use); (c)aggravated driving dangerously to escape police pursuit on 9 January 2007, in respect of which the sentencing Judge fixed a notional sentence of 18 months (including one count of illegal use and one count of driving whilst disqualified); and(d)driving dangerously to escape police pursuit on 23 February 2008, in respect of which the sentencing Judge fixed a notional sentence of 9 months.

Ratio Decidendi

Legal Principle Established

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