R v P, A - [2013] SASCFC 3

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v P, A; P, A v POLICE
[2013] SASCFC 3
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)
7 February 2013
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES - RELEVANT FACTORS - OTHER CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentences imposed in the Youth Court and the District Court – the appellant committed several offences as a young offender – in the Youth Court, after pleading guilty to the offences charged, the appellant was declared a recidivist young offender and sentenced to a term of detention of 21 months – added to this was a term of three months detention that remained from an earlier order of detention – in the District Court, the appellant pleaded not guilty – he was convicted on 28 September 2011, but was not sentenced until 28 June 2012 which was two days after he had completed his 24 month term of detention pursuant to the order of the Youth Court Judge – the appellant was sentenced to six years imprisonment with a non-parole period of four years.
Whether the appellant should be granted an extension of time to appeal against the sentence imposed in the Youth Court – whether it was appropriate for the Youth Court Judge to make a declaration that the appellant was a recidivist young offender – whether the sentences imposed in the Youth Court and District Court were manifestly excessive – in particular, whether the sentences were manifestly excessive as a consequence of the appellant being sentenced by two different judicial officers.
Held per the Court: The appellant should have been sentenced in one court in respect of all offences.
Held per Gray and White JJ (Vanstone J dissenting on this point): Extension of time to appeal to the Youth Court granted.
Held per Gray and Vanstone JJ: Appeal against the orders of the Youth Court Judge dismissed.
Held per White J (dissenting on this point): Appeal against the Youth Court sentence allowed in part to set aside the declaration that the appellant is a recidivist young offender.
Held per Gray and White JJ (Vanstone J dissenting on this point): Appeal against the sentence imposed in the District Court allowed – the totality of the sentence imposed was crushing – sentence imposed by the District Court set aside – appellant resentenced.
Criminal Law Consolidation Act 1935 (SA) s 19AC, s 20, s 86A, s 134, s 137, s 144, s 169 and s 170; Criminal Law (Sentencing) Act 1988 (SA) s 3, s 18A, s 20A, s 20B, s 20C, s 23, s 31A and s 58; Summary Offences Act 1953 (SA) s 74AB; Young Offenders Act 1993 (SA) 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 P, A

Details

AGLC: R v P, A [2013] SASCFC 3
Case: [2013] SASCFC 3
Decision Date: 7 February 2013

CaseChat Overview and Summary

This matter concerned an appeal against sentences imposed on the appellant, who had committed several offences as a young offender. The appellant was initially sentenced in the Youth Court to 21 months detention, with an additional three months from a previous order, after pleading guilty and being declared a recidivist young offender. Subsequently, in the District Court, the appellant was convicted of further offences and sentenced to six years imprisonment with a non-parole period of four years. This sentencing occurred two days after the appellant had completed his term of detention from the Youth Court order.

The appeal raised several legal issues for the court's determination. These included whether the appellant should be granted an extension of time to appeal the Youth Court sentence, whether the declaration of the appellant as a recidivist young offender by the Youth Court judge was appropriate, and whether the sentences imposed in both the Youth Court and the District Court were manifestly excessive. A particular focus was placed on whether the sentences were excessive due to the appellant being sentenced by two different judicial officers for his offences.

The Full Court of the Supreme Court of South Australia, comprising Gray, Vanstone, and White JJ, considered the appeals. A majority of the court concluded that the appeal against the District Court sentence should be allowed, and the appellant should be resentenced. The majority determined that the appellant should receive a term of imprisonment of four years with a non-parole period of two years, to commence on 26 June 2012. The appeal against the Youth Court orders was dismissed. Vanstone J, while agreeing that it would have been preferable for one judge to sentence the appellant for all offences, was not persuaded that either sentencing judge had erred. However, the majority decision prevailed.

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

GRAY J

I would set aside the sentence imposed by the District Court. In lieu, I would sentence the defendant to a term of imprisonment of four years. I would fix a non-parole period of 18 months. I would backdate the sentence to commence on 26 June 2012.Conclusion I have had the opportunity to review the draft reasons of the other members of the Court. Vanstone J would dismiss the appeal from the sentence imposed in the District Court. White J would allow this appeal, resentence the defendant to a term of imprisonment of four years and fix a non-parole period of two years. As indicated above, I would allow the appeal from the sentence imposed in the District Court, resentence the defendant to a term of imprisonment of four years and fix a non-parole period of 18 months. It is necessary for this Court to reach a majority conclusion as to the sentence to be imposed on the defendant in respect of the District Court proceedings. The majority conclusion is that a non-parole period of at least two years should be imposed. In the circumstances, to allow the majority view to be given effect to, I would concur in the making of an order in the following terms. The appeal against the sentence imposed in the District Court be allowed and the sentence imposed set aside. The defendant be resentenced to a term of imprisonment of four years. A non-parole period of two years be fixed. The sentence to commence on 26 June 2012. The appeal against the orders of the Youth Court Judge should be dismissed. VANSTONE J: The detail of the course of offending engaged in by the appellant is set out in considerable detail in the reasons of Gray J and White J, as is the passage of the charges through the Youth Court and District Court. I need not rehearse those details. They serve to underline both how serious was the appellant’s conduct and what a difficult task befell both sentencing judges. I agree with both Gray J and White J that it would have been better had one judge sentenced the appellant for all the offences. That would best have occurred in the District Court. However, I am not persuaded that either judge fell into error. In respect of the Youth Court sentence I agree with Gray J that due to the passage of time since the sentence it is now not appropriate to entertain an appeal. In relation to the District Court sentence it is to be noted that the sentencing judge, an experienced judge of that Court, had before him all the material now before this Court. In addition he had the benefit of having presided over the appellant’s trial. There is no reason to apprehend that the judge overlooked the appellant’s youth, the reports before the Court bearing on the appellant’s background and prospects, or the fact that the appellant had already served a significant period in detention as a result of the Youth Court sentence. There is no reason to believe that the judge was unaware of the high proportion that the total time in custody would bear to the total of the head sentences imposed. That high proportion is explicable having regard to the shocking nature of the offending, the need to protect the public, the appellant’s poor and escalating criminal record, his breach of the suspended detention order and the limited remorse shown by him.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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