R v Penny

Case [2012] SASCFC 16

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PENNY

[2012] SASCFC 16

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Stanley)

2 March 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TIME SPENT IN CUSTODY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES

Appeal against sentence - defendant pleaded guilty to two counts of aggravated serious criminal trespass in a place of residence, two counts of theft and two counts of dishonest manipulation of a machine - Judge identified, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) a notional starting point for all offences of six years imprisonment, reduced to five years on account of guilty plea - reduction of 19 months and five days made on account of time spent in custody, leaving a head sentence of three years, four months and 25 days - Judge brought to account unexpired parole, making the total head sentence six years, one month and 15 days, and fixed a non-parole period of two years - where defendant spent periods on home detention bail - whether Judge in error in declining to make reduction on account of time spent on home detention bail - whether the sentence imposed was manifestly excessive - whether Judge in error in declining to exercise discretion to suspend sentence of imprisonment.

Held: appeal dismissed - although the Judge misunderstood the total time spent on home detention bail, it is not a matter of substance or materiality, and in any event, there is no obligation on a Judge to make allowance in respect of home detention bail - in light of the defendant's extensive criminal antecedents and the circumstances of the within offending, the sentence imposed was at the lower end of the range, and the non-parole period merciful - it was not only open to the Judge to decline to suspend the sentence, but it was the correct decision in all the circumstances.

Criminal Law Consolidation Act 1935 (SA) s 134, s 141(1)(a), s 170(1) and s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 10(1)(ea) and s 10(2), referred to.
Rowe v Police [2003] SASC 160; R v Copeland (No 2) (2010) 108 SASR 398; R v Ravet [2011] SASCFC 67; R v Bagnato [2011] SASCFC 161; R v Allen [1999] SASC 346; R v Nguyen [2004] SASC 405; R v Malesevic [1999] SASC 321; Nicholls v Police (2007) 97 SASR 431; House v The King (1936) 55 CLR 499; Cranssen v The King (1936) 55 CLR 509; Harris v The Queen (1954) 90 CLR 652; Dinsdale v The Queen (2000) 202 CLR 321, considered.

R v PENNY
[2012] SASCFC 16

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R v Penny [2012] SASCFC 16
Case
[2012] SASCFC 16
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CaseChat Overview and Summary

The appellant, R v Penny, appealed against a sentence imposed by a judge of the District Court of South Australia. The appellant had pleaded guilty to two counts of aggravated serious criminal trespass, two counts of theft, and two counts of dishonest manipulation of a machine. The sentencing judge had determined a notional starting point for all offences of six years imprisonment, which was reduced to five years due to the guilty plea. A further reduction of 19 months and five days was applied for time spent in custody, resulting in a head sentence of three years, four months, and 25 days. This was then adjusted to a total head sentence of six years, one month, and 15 days by taking into account unexpired parole, with a non-parole period of two years fixed.

The appeal raised three grounds: firstly, whether the sentencing judge erred in declining to make a reduction for periods spent on home detention bail; secondly, whether the sentence imposed was manifestly excessive; and thirdly, whether the judge erred in declining to exercise discretion to suspend the sentence of imprisonment. The appellant argued that time spent on home detention bail should have been accounted for in the sentencing calculation, that the overall sentence was too severe given the circumstances, and that a suspended sentence would have been appropriate.

The Full Court of the Supreme Court of South Australia dismissed the appeal. While acknowledging that the sentencing judge may have misunderstood the total duration of home detention bail, the Court found this to be immaterial. It was held that there is no obligation on a judge to make an allowance for time spent on home detention bail. Furthermore, considering the appellant's extensive criminal history and the nature of the offending, the Court concluded that the sentence imposed was at the lower end of the sentencing range and the non-parole period was lenient. Consequently, the Court found that it was not only open to the judge to decline to suspend the sentence but that this decision was correct in all the circumstances.

Orders

Orders of the court

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Background

Background to the litigation

In sentencing, the Judge identified a starting point of a single head sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of six years imprisonment for all the offences to which the appellant had pleaded. This was reduced to five years on account of the guilty plea. A further deduction of 19 months and five days was made on account of time spent in custody. This left a head sentence of three years, four months and 25 days. The defendant had unexpired parole amounting to two years, eight months and 20 days which the Judge brought to account. This resulted in a total head sentence of six years, one month and 15 days, in respect of which the Judge fixed a non-parole period of two years, both being ordered to commence from 13 October 2011. Background The offending occurred on two separate occasions. On 29 July 2008, at some time between midnight and 2.00 am, the defendant broke into a home at Tennyson while the occupants were at home asleep. This is the subject of the first count of aggravated serious criminal trespass. The defendant stole the female occupant’s handbag, a purse, wallet, cash, cosmetics, credit cards and keys. This is the subject of the first count of theft. The first dishonest manipulation of a machine count arose from the defendant a few hours later having, through an eftpos transaction, purchased accommodation at a motor inn to the value of $139.00 using a card stolen from the Tennyson home. On 11 August 2008 at some time before 2.45 am, the defendant broke into a Semaphore home while the male occupant was at home asleep. This is the subject of the second count of aggravated serious criminal trespass. The defendant stole a number items including jewellery, a mobile telephone, a global positioning system and recharger, a wallet, identification cards, bank cards and $500.00 cash, being the second count of theft. The second count of dishonest manipulation of a machine arose when the defendant, through an automatic teller machine at a hotel in Pennington withdrew $2,050.00 using cards stolen from the Semaphore home. On 18 August 2008 the defendant was arrested. He was originally charged with two counts of aggravated serious criminal trespass, two counts of theft, 13 counts of dishonest manipulation of a machine and 10 counts of attempted dishonest manipulation of a machine. He pleaded not guilty and the matter was listed for trial commencing 25 October 2010. This trial date was not reached and the matter was relisted for trial commencing 30 May 2011. On 31 May 2011, following negotiations the defendant pleaded guilty to the six counts I have set out above, which pleas were accepted in full satisfaction of the information. On this occasion, bail was revoked. Submissions on sentence were subsequently heard on 7 September and 5 October 2011. On 13 October 2011, the defendant was sentenced. The defendant appeals to this Court on the basis that the Judge erred in failing to make any deduction in the sentence for periods spent on home detention bail, that in all the circumstances the sentence imposed was manifestly excessive, and that the Judge erred in not considering that good reason existed to suspend the sentence of imprisonment. Before turning to discuss the complaints on appeal, it is convenient to address the sentencing remarks of the Judge. The Sentencing Judge

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J (dissent) STANLEY J (dissent)
I consider that the sentence imposed by the Judge was a lenient sentence in all the circumstances and one that could be fairly described as merciful. It is to be recalled that section 353(4) of the Criminal Law Consolidation Act 1935 (SA) provides: (4) Subject to subsection (5), on an appeal against sentence, the Full Court must—(a) if it thinks that a different sentence should have been passed—(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or(b) in any other case—dismiss the appeal.This Court will only interfere on an appeal against sentence if it considers that a different sentence should have been passed. I do not consider that a different sentence should have been passed. Conclusion I would dismiss the appeal. I agree that the appeal should be dismissed for the reasons given by Gray J. I have read the reasons of Gray J. For the reasons given by his Honour, I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by:

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