R v Petter - [2005] SASC 452

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PETTER
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice White)
22 November 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Application for an extension of time within which to apply for leave to appeal against conviction - consideration of the definition of premises as a "residence" for purposes of s 170(2) of the Criminal Law Consolidation Act 1935 - application refused.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for leave to appeal against sentence - whether manifestly excessive - application refused.
Criminal Law Consolidation Act 1935 s 169, s 170(2), referred to.

R v PETTER
[2005] SASC 452
Court of Criminal Appeal: Doyle CJ, Sulan and White JJ

DOYLE CJ: This is an application for an extension of time within which to apply for leave to appeal against conviction, and an application for leave to appeal against sentence.
Leave to appeal was refused in each case by a single judge of this Court, as was the application for an extension of time.
The applicant has requested that his applications be considered by the Full Court. The Full Court has ordered that the applications be listed for oral argument. The court has considered the reasons of the single judge and has heard submissions from Mr Ibbotson for the applicant.
I deal first with the application for leave to appeal against conviction. I will come back to the extension of time in due course.
The applicant was convicted on a charge of aggravated serious criminal trespass in a place of residence, contrary to s 170(2) of the Criminal Law Consolidation Act 1935. It is argued essentially that the premises in question were not a place of residence for the purposes of s 170. It is argued that they were non-residential premises for the purposes of s 169 of the Act, as they were used primarily, or predominantly, or perhaps even solely, for a non-residential purpose, being the unlawful production of cannabis for sale.
In my view, this ground of appeal has no reasonable prospects of success.
There was circumstantial evidence before the jury which, if accepted, was capable of supporting a finding that the premises in question were a place of residence. Indeed, there is considerable evidence to that effect. Accordingly, it was open to the jury to find, if they accepted that evidence, that the premises were a place of residence.
The Judge adequately directed the jury on the point. He drew the relevant issues to their attention at pp.4 to 6 of the summing up. There is no substance in the argument that the jury had to identify a single predominant use of the premises, either residential or non-residential. The Criminal Law Consolidation Act 1935 contemplates that parts of a building can be residential and other parts might not. In my view, no criticism can be made of the summing up. The judge left the issue to the jury in a fair and balanced manner.
The suggestion that the bare fact the premises were used for an unlawful purpose, namely to produce cannabis, somehow of itself affects the question before the jury has no substance at all. It has nothing to do with the issue.
Nor was it necessary in the circumstances for the judge to invite the jury to consider as an alternative aggravated serious criminal trespass in a non-residential building. Having regard to the manner in which the case was conducted, there was no need to do so.
Accordingly, having regard solely to the merits of the application for leave to appeal against conviction, I would refuse leave to appeal because the ground is not reasonably arguable.
I would also refuse leave to appeal against sentence.
The Judge imposed a slightly heavier sentence on the applicant than he imposed on the other offenders. There were circumstances adequately justifying him in following this course. Mr Petter has a worse record than the other offenders, with the possible exception of Mr Portolesi. As it happens, the Judge imposed the same sentence on Mr Petter as was imposed by a different judge on Mr Portolesi.
There is no substance in the submission that the sentence imposed on the applicant is disproportionately heavy. The difference is justified by the applicant’s bad record. Nor is there any substance in the submission that the non-parole period is excessive. Having regard to the head sentence, and having regard to the applicant’s poor prospects of rehabilitation, it cannot reasonably be suggested that the sentence is manifestly excessive.
The argument that the Judge erred in failing to suspend the sentence also has no reasonable prospect of success. Indeed, having regard to leniency previously extended to Mr Petter, a decision to suspend the sentence would have been a surprising outcome.
The final complaint about the sentence is that it was a circumstance of mitigation that the premises were being used for an unlawful purpose. There is nothing at all in that point. It is not a circumstance of mitigation.
For the purpose of this application, the court has had the opportunity to consider, apart from material raised on the hearing of the application, the pre-sentence report and the reports of Dr Raeside. These reports disclose that the applicant has had a troubled upbringing. There are circumstances outlined in them which help one understand, to some extent, Mr Petter’s poor record and the number of offences he has committed. But despite all that, the fact is that he does have a very poor record. Leniency has been extended to him in the past.
While the difficulties in his background help one understand how he might come to offend, these difficulties do not excuse what he has done. The point has been reached at which Mr Petter has to understand that the kind of conduct in which he is prone to engage is not acceptable. The appeal against sentence is not reasonably arguable on the merits.
For those reasons, although were it not for the view I take of the merits I might be inclined to grant an extension of time, I would refuse the extension of time. I do so because a relevant factor in considering whether to extend time is the merits of the proposed appeal, and in this case the proposed appeal has no merits.
For those reasons, I would refuse to extend time within which Mr Petter might apply for leave to appeal against conviction. I would refuse leave to appeal against the sentence.
SULAN J: I agree with the Chief Justice. I would also refuse to grant an extension of time and I would refuse leave to appeal against sentence. I agree with the Chief Justice’s reasons.
WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons.
DOYLE CJ: Accordingly, the orders of the Court are:
1 That the application for an extension of time within which to apply for leave to appeal against conviction be refused.
2 That leave to appeal against sentence be refused.