SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MOORE
[2015] SASCFC 9
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Stanley)
6 February 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS
Appeal against sentence.
The appellant was charged with a number of offences. They were one count of possessing child pornography, one count of aggravated possession of child pornography, three counts of theft, one count of possession of an article to commit an offence, two counts of providing false information to a second-hand dealer, one count of unlawful possession and one count of damaging property. The appellant pleaded guilty to all offences.
A judge of the District Court imposed sentences totalling five years and three months imprisonment. The judge fixed a non-parole period of three years and nine months. The head sentences consisted of the aggregation of a 15 month term of imprisonment for the first count of theft, an 18 month term of imprisonment for the second count of theft and the offence of possession of an article to commit an offence, an 18 month term of imprisonment for the third count of theft and the offence of property damage and a 12 month term of imprisonment for the offence of unlawful possession, all of which were to be served cumulatively (the dishonesty offences).
The court imposed a further sentence of 12 months imprisonment for the offences of possession of child pornography and aggravated possession of child pornography which the judge ordered to be served concurrently with the sentences for the dishonesty offences.
The appellant was convicted without further penalty for the two counts of providing false information to a second hand dealer.
The dishonesty offences occurred while the appellant was on bail in respect of the child pornography charges.
The grounds of appeal are that both the head sentence and the non-parole period are manifestly excessive and that the sentencing judge failed to give adequate consideration to the totality principle.
Held per Stanley J (Kelly and Blue JJ agreeing), allowing the appeal to the extent of setting aside the non-parole period and imposing a new non-parole period:
1. In this matter the aggregated sentence cannot be considered crushing. There was no reason based on the totality principle to reduce the length of any of the sentences imposed (at [28]).
2. There was no error in the approach of the sentencing judge in ordering the sentences for the dishonesty offences to be cumulative. There is no requirement for concurrent sentences for offences of a similar nature not widely separated by time (at [29]).
3. The fixing of a non-parole period serves a different function from the setting of a…
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- R v Moore [2015] SASCFC 9
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CaseChat Overview and Summary
The court was required to determine whether the total sentence imposed was manifestly excessive, particularly in light of the totality principle. It also had to consider whether the sentencing judge erred in ordering sentences for dishonesty offences to be served cumulatively and a sentence for child pornography offences to be served concurrently. Finally, the court had to assess whether the non-parole period was fixed appropriately, considering factors such as rehabilitation.
The court reasoned that the aggregated head sentences totalling five years and three months were not crushing and were not manifestly excessive, given the appellant's significant criminal history and the aggravating feature that the dishonesty offences occurred while on bail. The court found no error in ordering the dishonesty offences to be served cumulatively, as there is no requirement for concurrent sentences for offences of a similar nature not widely separated by time. The court also noted that the child pornography offences did not arise from the same course of conduct as the dishonesty offences, making the ordering of concurrency for those offences generous. However, the court found that the sentencing judge erred in fixing a non-parole period that was too long, considering the appellant's health issues, the need for addiction treatment, and the prospects of rehabilitation.
The appeal was allowed to the extent that the non-parole period was set aside and a new non-parole period of two years and eight months was fixed.
Orders
Orders of the court
1. In this matter the aggregated sentence cannot be considered crushing. There was no reason based on the totality principle to reduce the length of any of the sentences imposed (at [28]).
2. There was no error in the approach of the sentencing judge in ordering the sentences for the dishonesty offences to be cumulative. There is no requirement for concurrent sentences for offences of a similar nature not widely separated by time (at [29]).
3. The fixing of a non-parole period serves a different function from the setting of a head sentence. In fixing a non-parole period it is appropriate to give greater weight to rehabilitation than in fixing the head sentence (at [32]).
4. The sentencing judge erred in the exercise of his discretion in fixing a non-parole period as long as he did. The appeal is allowed to the extent of setting aside the non-parole period and fixing a non-parole period of two years and eight months (at [33]).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Later in that month the appellant removed or damaged electrical cabling to 40 housing blocks and from an electrical transformer at a development at Parafield Gardens. A few days later he deposited 60 kg of insulated aluminium cable at the Scouts Recycling Centre in exchange for $82. Two days later he returned and deposited more insulated aluminium cable and copper wire for which he received a further $82. The cost of repairing the damage caused by removing the cables at the housing estate was assessed at a sum in excess of $50,000.Consideration A peculiar feature of the sentencing is that the judge ordered the sentences imposed for the dishonesty offences to be served cumulatively while he ordered the single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) for the child pornography offences to be served concurrently. The general principle is that where offences arise out of the one course of criminal conduct or activity and are truly connected with each other the sentences should be concurrent.[7] In my view, the child pornography offences cannot be said to arise out of the same course of criminal conduct or activity as the dishonesty offences. Accordingly, it is difficult to understand the basis upon which the sentencing judge ordered concurrency. On the other hand, Mr Lang, counsel for the appellant, submits that the aggregation of the cumulative sentences for the dishonesty offences, even allowing for what might be considered the generosity of ordering the sentence for the child pornography offences to be served concurrently, is too high. He submits that a lower sentence should have been imposed having regard to the totality principle. [7] R v Dorning (1981) 27 SASR 481 at 482. Whatever might be said about the approach of the sentencing judge in ordering particular sentences to be cumulative or concurrent and the failure to apply expressly the totality principle, it is the actual sentence imposed that must be considered in determining whether the sentence is manifestly excessive. That exercise involves an evaluation of whether the total sentence is a just and appropriate measure of the criminality involved considered in the light of the personal circumstances of the offender.[8] [8] Mill v The Queen (1988) 166 CLR 59 at 63. In my view, the head sentences totalling five years and three months were not manifestly excessive. I do not consider the head sentences are unreasonable or plainly unjust when the total criminality involved is considered against a background of a significant criminal history which has seen the appellant given ample opportunity to amend his unlawful behaviour. The sentence must also be considered in the context of the aggravating feature that the dishonesty offences occurred while the appellant was on bail. The aggregated sentences cannot be considered crushing. In my view, there was no reason based on the totality principle to reduce the length of any of the sentences imposed. Even if an argument could be made that there was scope for partial concurrency in the sentences imposed for the dishonesty offences, I do not consider this avails the appellant. First, I do not accept there was any error in the approach of the sentencing judge in ordering the sentences for the dishonesty offences to be fully cumulative. There is no requirement for concurrent sentences for offences of a similar nature not widely separated by time.[9] Secondly, the fact that these offences were offences of dishonesty does not necessarily lead to the conclusion that they arose out of one course of criminal conduct or activity and are truly connected with each other so as to invoke the Dorning principle. All that connects them is that the offending was motivated by the need to fund the appellant’s drug habit. Thirdly, in any event, the appellant was treated generously and mercifully by the sentencing judge ordering that the sentence for the child pornography offences, which itself was at the lower end of the range for these offences, was to be served concurrently. [9] R v Fuller [2013] SASCFC 85 at [27].