R v Regan - [2003] SASC 287

R v REGAN
[2003] SASC 287
Court of Criminal Appeal: Bleby, Besanko and Sulan JJ

BLEBY J. This is an appeal against sentence. The appellant pleaded guilty to one count of serious criminal trespass, and one count of larceny. He was sentenced to four years imprisonment, with a non-parole period of 18 months.
The offences occurred on 3 May 2002, when the appellant broke into residential premises at Glynburn Road, Burnside, and stole antique furniture, china, silverware and homeware of the value of approximately $50,000. Damage to the extent of approximately $5,000 was also done to the house. The sentencing Judge recorded the latter figure as $2,000, but there seems to have been no material to support that figure. The owners were not present at the time. On the day prior to the day on which the offences were committed, a problem arose between the appellant and his then girlfriend, who had ejected him from their shared residence. The police were called and the appellant was taken into custody. When he was released the next day he went back to their residence to find his possessions had disappeared. He then went out drinking and taking amphetamines. The appellant did not recall committing the offences in question, but accepted that he must have been involved because his fingerprint was found on at least one of the items taken from the house.
The sentencing Judge had regard to the victim impact statement that was tendered before him. This statement indicated that the offences had caused the victims to feel anxious and insecure. The possessions stolen in the incident were of significant sentimental value. Much was recovered, some in damaged condition. $25 cash, jewellery, electric hand tools and some ornaments and personal effects were not recovered.
The appellant is 38 years old. He grew up with supportive parents, and in particular, he described himself as being “very close” to his father. He left school at the age of sixteen when his girlfriend at the time became pregnant to him. He found employment as a contract cleaner and in a fast food outlet in order to support his girlfriend and young son. Although his relationship with his girlfriend ended, he helped to raise the child, who lived with the appellant during that child’s high school education. In 1995 the appellant had another child with a different partner.
In 1988 the appellant returned to study as a mature age student and completed a Bachelor of Arts in Community Theatre and a Diploma in Education. In 1994 he commenced employment as a teacher at Smithfield Plains High School, where he taught Drama, English and History until he left the school in 2001 on mental health grounds. The appellant’s father had died in 1997, and the loss was extremely distressing to him. He grew progressively more depressed until in 2001 his depression became so significant that he could barely get out of bed in the morning to go to work. He terminated his employment and was paid…

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

AGLC: R v Regan [2003] SASC 287
Case: [2003] SASC 287
Decision Date: 22 August 2003

CaseChat Overview and Summary

In the South Australian Supreme Court, the appellant appealed against his sentence for serious criminal trespass and larceny. The appellant pleaded guilty to breaking into a residential property and stealing items worth approximately $50,000, causing $5,000 in damage. The appellant had no previous convictions of a serious nature and had never been sentenced to imprisonment. The District Court Judge sentenced the appellant to four years imprisonment with a non-parole period of 18 months, which the appellant considered manifestly excessive and that the Judge erred in failing to suspend the sentence. The legal issues were whether the sentence was manifestly excessive and whether the Judge erred in failing to suspend the sentence. The Court considered the nature of the offence of serious criminal trespass and the appropriate sentencing principles, as well as the appellant's background and steps towards rehabilitation. The Court concluded that the starting points for the serious criminal trespass and larceny were too high and that the sentencing Judge erred in fixing a combined penalty of four years imprisonment. The Court considered the tension between community condemnation of such home invasions and the need to encourage reform and rehabilitation where there are genuine and demonstrable prospects of success. The Court endorsed the view that a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. The Court allowed the appeal, set aside the sentence imposed by the District Court, and imposed a sentence of two years and six months imprisonment with a non-parole period of 15 months, the head sentence and non-parole period to commence from today. The sentence was suspended upon the appellant entering into a bond in the sum of $200, with conditions to ensure his continued rehabilitation and to include a substantial period of community service. The other Judges agreed with the orders proposed by Bleby J and with his reasons for those orders.

Orders