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R v Pumpa

R v Pumpa

Case [2013] SADC 157 22 November 2013

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PUMPA
[2013] SADC 157
Reasons for Ruling of His Honour Judge Beazley
22 November 2013
CRIMINAL LAW - PROCEDURE - JURISDICTION
Prisoner "taken to be a serious repeat offender" by statute pursuant to s 20B(a1) of the Criminal Law (Sentencing) Act 1988 ("the Act") - observations as to the consequences of such a provision - application by prisoner, pursuant to s 20 BA(2) of the Act, for the Court to declare that the sentencing provisions relating to serious repeat offenders in s 20BA(1) of the Act do not apply to him - observations as to the interpretation of the words "so exceptional" - concern expressed as to the scope and effect of s 20B(a1) of the Act.
Held: Although there are many factors which militate against the imposition of non-parole period of at least four-fifths of the head sentence, they are properly classified as mitigatory and do not constitute exceptional circumstances.
Criminal Law (Sentencing) Act 1988 ss 20A, 20B, 20BA, referred to.
R v Tootell ex parte A/G (Qld) [2012] QCA 273; AB v R (1999) 198 CLR 111; Griffiths v R (1989) 167 CLR 372; R v Kelly [2000] 1 QB 198; R v Saunders [2011] SASCFC 37; R v M, STE [2013] SASCFC 111; R v Jackamarra [2013] SASCFC 98; R v Williams [2006] SASC 377; Emmerson v DPP (NT) [2013] NTCA 4; R v Betts (2009) SASC 305; Bugmy v The Queen [2013] HCA 37, considered.

R v PUMPA
[2013] SADC 157
Introduction

The prisoner, Shane Pumpa, a person taken by Statute to be a “serious repeat offender” pursuant to s 20B(a1) of the Criminal Law (Sentencing) Act 1988 (“the Act”), seeks an order, pursuant to s 20 BA(2) of the Act, declaring that it is not appropriate that he be sentenced as a serious repeat offender. The prisoner, who had a bad criminal history, had pleaded guilty in the Magistrates Court to one count of Aggravated Serious Criminal Trespass in a place of Residence, and one count of dishonestly taking property without the owner’s consent. Both offences arose out of the same event which occurred on 23 April 2013 at Glenelg East.
Although there was no dispute that the prisoner falls within the scope of the subject section 20B(a1) of the Act, I will make some observations about the effect of that section. I understand that this is the first case which has involved a consideration of that section, which had commenced on 4 March 2013[1].
[1] See Section 17 Act No 33 of 2012
Section 20B(a1) provides:
A person will, by force of this subsection, be taken to be a serious repeat offender if the person (whether as an adult or as a youth) –
(a) has committed on at least three separate occasions a Category A serious offence to which this Division applies (whether or not the same offence on each occasion);
(b) has been convicted…

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 Pumpa

Details

AGLC: R v Pumpa [2013] SADC 157
Case: [2013] SADC 157
Decision Date: 22 November 2013

CaseChat Overview and Summary

In the case of R v Pumpa, the appellant, a repeat offender, contested the application of specific sentencing provisions within the Criminal Law (Sentencing) Act 1988. These provisions mandated that a non-parole period of at least four-fifths of the head sentence must be imposed. The appellant argued that the statutory provision, which classified him as a "serious repeat offender" under section 20B(a1) of the Act, should not apply to him. The court was required to determine the applicability of the sentencing provisions and the interpretation of the phrase "so exceptional" as it pertained to the appellant’s circumstances.

The legal issues before the court centred on the interpretation and application of the statutory provision that designated the appellant as a serious repeat offender and the extent to which the prescribed non-parole period should apply. The court needed to decide whether the mitigating factors presented by the appellant were sufficiently exceptional to warrant a departure from the statutory requirement. The primary focus was on whether the appellant's circumstances constituted "exceptional" conditions as per the definition provided in the Act.

The court, in its reasoning, found that while there were several mitigating factors that could be considered, they did not rise to the level of "exceptional circumstances" as required by the Act. The court noted that the statutory language indicated that only truly exceptional cases should be excluded from the mandatory sentencing provisions. The appellant’s arguments, although valid, did not meet the threshold of being "so exceptional" to warrant an exemption from the statutory requirements. Consequently, the court upheld the application of the sentencing provisions, rejecting the appellant's application for a declaration that the provisions did not apply to him.

The final orders of the court affirmed the mandatory sentencing provisions for the appellant, ensuring that the non-parole period of at least four-fifths of the head sentence remained in effect. The court's decision highlighted the importance of interpreting the statutory language strictly and underscored that the appellant's circumstances, while worthy of consideration, did not meet the stringent criteria for being deemed "exceptional" within the meaning of the Act.

Orders