R v Pretty No. Sccrm-00-78 - [2000] SASC 181

R v PRETTY
[2000] SASC 181

Court of Criminal Appeal: Olsson, Wicks and Gray JJ

1................ OLSSON J:...... I have had the benefit of reading, in draft, the reasons for decision published by Gray J. I agree with his conclusions and that the appeal must be dismissed.

2................ WICKS J......................... I agree that the appeal be dismissed for the reasons given by Gray J. I have nothing to add.

3................ GRAY J:........... ............. Brian Kevin Pretty pleaded guilty to two counts of robbery with violence. He was sentenced to imprisonment for a period of eight years with a non-parole period of four years. He has appealed against the sentence raising two matters of complaint. First, that the sentence including the non-parole period, was manifestly excessive and secondly, that there was an unjustifiable disparity between the sentence imposed upon the appellant, as against the sentence imposed on his co-accused, Cowen.

Shortly before midnight on 9 August, 1999 the appellant with Cowen hailed a taxi in Hindley Street, Adelaide. They asked to be taken to a hotel on Prospect Road. When the taxi reached Prospect Road, they asked the driver, a Mr Burton, to turn into several side streets and then asked him to stop. Mr Burton was immediately on the alert. He thought this strange as they had indicated that they wished to go to a hotel.
As Mr Burton was braking to pull over, the appellant put a cord around his neck from behind, in the fashion of a garotte, and demanded his wallet and money. Mr Burton struggled and was able to stop the cord being tightened around his neck. Fingers were then placed in his nostrils and his head was pulled back sharply. He attempted to accelerate and brake quickly to dislodge his assailant. As a result his vehicle collided with a stobie pole. As he called for assistance, Cowen hit him about the head with the coin dispenser from the taxi.
Cowen immediately ran away but the appellant stayed on the road for a short time. Cowen returned and together they made their escape. Mr Burton was taken to hospital by ambulance and received treatment.
Shortly thereafter, in the early hours of Tuesday 10 August 1999, the appellant and Cowen, still in the vicinity of Prospect Road, approached a Mr Selby, who was walking in a northerly direction on Prospect Road on the western footpath. The appellant struck Mr Selby a heavy blow to his head and back and Mr Selby fell to the ground. Mr Selby gave his wallet to Cowen on demand. Cowen also took coins, a lighter and a pen. They made their escape.
The appellant and Cowen were apprehended by the police, in the vicinity, some 30 minutes later. When questioned, the appellant denied any involvement and gave a false name. He did not cooperate with the police in regard to their enquiries or investigations.
The learned sentencing Judge had the benefit of victim impact statements from Mr Burton and Mr Selby. The…

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.

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Details

Case: [2000] SASC 181
Decision Date: 30 June 2000

CaseChat Overview and Summary

The case of R v Pretty, heard by the Court of Criminal Appeal in South Australia, involved Brian Kevin Pretty, who had pleaded guilty to two counts of robbery with violence. Pretty was sentenced to imprisonment for a period of eight years with a non-parole period of four years. He appealed against the sentence on the grounds that it was manifestly excessive and that there was an unjustifiable disparity between the sentence imposed on him and that imposed on his co-accused, Cowen. The Court of Criminal Appeal was tasked with determining whether the sentence was excessive and whether there was an unjustifiable disparity between the sentences of Pretty and Cowen.

The court considered the circumstances of the robberies, which involved terrifying attacks on two victims, Mr Burton and Mr Selby. The court also considered the appellant's history of prior offending, which included convictions for burglary and assault, and his relapse into criminal activity while on parole. The court noted that the appellant had a difficult upbringing, which may have contributed to his criminal behaviour, but did not offer an excuse for his actions. The court found that the sentence imposed was not manifestly excessive, and that the non-parole period was set at a reasonable 50% of the head sentence. The court also found that the sentencing judge had appropriately differentiated between the appellant and his co-accused, taking into account their respective criminal histories.

In conclusion, the Court of Criminal Appeal dismissed Pretty's appeal against his sentence. The court found that the sentence was appropriate given the seriousness of the offences, the appellant's criminal history, and the need for deterrence. The court also found that there was no unjustifiable disparity between the sentences imposed on Pretty and Cowen. The final orders of the court were that the appeal be dismissed.

Orders