R v NEWTON - [2015] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NEWTON
[2015] SASCFC 61
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Parker)
1 May 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
Appeal against sentence following pleas of guilty to serious criminal trespass in a non-residential building and numerous dishonesty offences committed while subject to a suspended sentence - sentence of imprisonment for three years, one month and two weeks cumulative upon the earlier three month sentence with a non-parole period of 21 months - whether sentence manifestly excessive.
Held: appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134, s 169, s 270A; Bail Act 1985 (SA) s 17; Summary Offences Act 1953 (SA) s 41; Road Traffic Act 1961 (SA) s 47BA, referred to.

R v NEWTON
[2015] SASCFC 61
Court of Criminal Appeal: Vanstone, Blue and Parker JJ

VANSTONE J: This is an appeal against a sentence imposed in the District Court after pleas of guilty to serious criminal trespass and some 14 other dishonesty offences. The offending was in breach of a three month suspended sentence bond. The appellant was sentenced to 11 months and two weeks imprisonment for the serious criminal trespass. For the other dishonesty offences the judge imposed a single sentence of two years and two months, to be served cumulatively. The previously suspended sentence was ordered to be served. That led to an aggregate head sentence of three years, four months and two weeks imprisonment. The judge fixed a non-parole period of 21 months.
The only argument advanced by the appellant is that the sentence is manifestly excessive.
Background
The span of the offending and a sketch of the circumstances are set out in the table below.

Offence Date of offence Maximum penalty Facts

Theft – s 134 Criminal Law Consolidation Act 1935 (CLCA)

2 August 2013

10 years imprisonment.

The appellant left David Jones with an iPod clock radio worth $799 concealed in a bag. The item was recovered.

Theft – s 134 CLCA

5 January 2014
10 years imprisonment. The appellant was captured by CCTV footage removing fencing from a private property, causing damage of approximately $250.

Theft – s 134 CLCA

7 February 2014
10 years imprisonment. The appellant left Myer without paying for clothing. One item not recovered caused a loss of $19 to the store.

Driving with prescribed drug in oral fluid – s 47BA Road Traffic Act 1961 5 March 2014 For second offence, fine of not less than $1100 and not more than $1600. Disqualification of licence for not less than 6 months. The appellant was stopped and tested by police while driving on Glen Osmond Road. He tested positive to methylamphetamine.

Theft – s 134 CLCA
15 March 2014 10 years imprisonment. The appellant left Bunnings, Kent…

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 NEWTON

Details

AGLC: R v Newton [2015] SASCFC 61
Case: [2015] SASCFC 61
Decision Date: 1 May 2015

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant following his guilty pleas to serious criminal trespass in a non-residential building and numerous dishonesty offences. The appellant was sentenced to three years and one month and two weeks imprisonment, cumulative upon a prior three-month sentence, with a non-parole period of 21 months. The appeal was brought before Vanstone, Blue, and Parker JJ of the court.

The central legal issue before the court was whether the sentence imposed was manifestly excessive. The appellant argued that the sentencing judge failed to adequately consider the opportunistic nature of the serious criminal trespass offence and his lack of awareness of the value of the stolen property. Further, it was contended that the judge did not sufficiently account for the minor, summary nature of most of the other dishonesty offences, the appellant's cessation of drug use, his six months on home detention bail, and the application of the totality principle.

The court reasoned that the appellant's persistent offending over a ten-month period, despite repeated encounters with authorities and while subject to a suspended sentence, was a significant factor. While acknowledging the low value of most stolen items and the appellant's ignorance of the microscope's significant value, the court found these factors to be of limited weight given the appellant's recent history of dishonesty offences. The judge was entitled to impose cumulative sentences, and the breadth of discretion available to the judge was wide due to the volume and duration of the offending. The court concluded that the sentence was not at a level requiring consideration of the totality principle, and the non-parole period was considered merciful.

Consequently, the appeal was dismissed, with the court finding that the total sentence was within the available range and that the previously suspended term was correctly added to the new sentence.

Orders

Orders of the court

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Background

Background to the litigation

The only argument advanced by the appellant is that the sentence is manifestly excessive.BackgroundThe span of the offending and a sketch of the circumstances are set out in the table below. The penalties imposed in relation to the driving charge and the charge of breaching bail do not form part of the sentence under appeal. The appellant pleaded guilty to eight of these offences in the Magistrates Court, including the major indictable offence of theft at Kennards Storage, involving property worth over $30,000. He was committed for sentence to the District Court on 10 October 2014. The remaining charges were called up from the Magistrates Court whereupon guilty pleas were promptly entered. The judge reduced the sentences by about 30 per cent to reflect the pleas. The suspended sentence bond which was breached by all the offending was entered into on 11 April 2013 for a period of 18 months. It related to two counts of deception committed in November 2012 when the appellant removed multiple cartons of cigarettes from supermarkets while posing as a cigarette company representative. At the time of sentence the appellant was 35 years old. He and his partner have a young child. He has a good work history. His criminal record includes recent dishonesty and drug offences. In the wake of a failed business venture in about 2011, the appellant claims to have become addicted to methylamphetamine. He said the offending amounted to his persistent attempts to raise money to pay off increasing debts and to fund his addiction. While on bail awaiting sentence the appellant attended four sessions with a psychologist at Drug and Alcohol Services South Australia. In a letter to the Court, the psychologist spoke of the appellant’s decision to cease amphetamine use and his commitment to “rehabilitation treatment options”. She noted his last reported use of the drug as being in October 2014. In his remarks the sentencing judge accepted that the appellant had “overcome” his drug problems. Arguments on appeal The appellant does not assert there was any specific error in the approach taken by the sentencing judge. The complaint is that the head sentence and non-parole period are manifestly excessive. In support of this it is put that the sentence imposed for serious criminal trespass failed to adequately reflect the opportunistic nature of the crime and the appellant’s lack of awareness of the value of the stolen item. In relation to the remaining dishonesty offences, the appellant argues that the judge failed to adequately take into account that most of these were minor summary offences.The appellant further complains that the judge failed to adequately take into account his cessation of drug taking. In addition, no mention was made of the fact that he spent six months on home detention bail awaiting sentence. Finally, the appellant argues that the judge failed to apply the totality principle.Analysis The striking feature of the appellant’s conduct is that he persistently offended over a period of 10 months, despite being caught in the act by the authorities on numerous occasions. Against this, the low value of most of the items stolen and the fact that the appellant was not to know of the significant value of the microscope are of limited weight. He had been dealt with by the courts for dishonesty offences as recently as four months prior to commencing this course of offending and so all the current offences were committed in breach of that bond.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLUE J (dissent)

The judge was entitled to impose cumulative sentences. Because there were so many offences and they were committed over a long period the judge had quite a wide discretion in determining sentence. Although the judge expressed a desire to avoid a sentence that was “crushing”, the sentence was not at a level where any need for a consideration of totality arose. Conclusion The argument that the sentence was manifestly excessive must fail. The total sentence for the fresh offending of three years, one month and two weeks was within the range of sentences available. The previously suspended term had to be added to the new sentence. The non-parole period was merciful. I would dismiss the appeal. I agree. PARKER J: I would dismiss the appeal for the reasons given by Vanstone J.

Ratio Decidendi

Legal Principle Established

Established by:

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Offence	Date of offence	Maximum penalty	Facts
Theft – s 134 Criminal Law Consolidation Act 1935 (CLCA)	2 August 2013	10 years imprisonment.	The appellant left David Jones with an iPod clock radio worth $799 concealed in a bag. The item was recovered.
Theft – s 134 CLCA	5 January 2014	10 years imprisonment.	The appellant was captured by CCTV footage removing fencing from a private property, causing damage of approximately $250.
Theft – s 134 CLCA	7 February 2014	10 years imprisonment.	The appellant left Myer without paying for clothing. One item not recovered caused a loss of $19 to the store.
Driving with prescribed drug in oral fluid – s 47BA Road Traffic Act 1961	5 March 2014	For second offence, fine of not less than $1100 and not more than $1600. Disqualification of licence for not less than 6 months.	The appellant was stopped and tested by police while driving on Glen Osmond Road. He tested positive to methylamphetamine.
Theft – s 134 CLCA	15 March 2014	10 years imprisonment.	The appellant left Bunnings, Kent…