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R v Richards

R v Richards

Case [2006] SASC 60 3 March 2006

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RICHARDS
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Sulan)
3 March 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence - appellant convicted by jury of aggravated serious criminal trespass in a place of residence and theft - house unoccupied at the time of offence - $33,000 worth of property taken - appellant sentenced to six years imprisonment with a non-parole period of three years - whether sentence manifestly excessive - whether good reason exists to suspend the sentence - appeal allowed - sentence of the District Court set aside - taking into consideration the time spent in custody, appellant sentenced to three years nine months imprisonment with a non-parole period of one year nine months, suspended for a period of two years.
Criminal Law Consolidation Act 1935 s 168, s 170, s 170(2), s 134(1); Criminal Law (Sentencing) Act 1988 s 10(1)(n), s 38; Offenders Probation Act 1981 s 4(2a); Summary Procedure Act 1921 s 5(3)(a)(iii)(D), referred to.
R v Amuso (1987) 138 LSJS 53, distinguished.
Bates v Police (1997) 70 SASR 66; Neill v Police [1999] SASC 270; R v Carpienteri (2001) 81 SASR 164; R v Delphin (2001) 79 SASR 429; R v Fowler [2006] SASC 18; R v Machtas (1992) 62 A Crim R 179; R v Osenkowski (1982) 30 SASR 212; R v Penno (2004) 236 LSJS 457; R v Staker [2001] SASC 266; R v Wirth (1976) 14 SASR 291; Vartzokas v Zanker (1989) 51 SASR 277, considered.

R v RICHARDS
[2006] SASC 60
Court of Criminal Appeal: Doyle CJ, Nyland and Sulan JJ

DOYLE CJ: I have had the advantage of considering the reasons of Sulan J.
I agree with him that the sentence imposed by the District Court is excessive, and that this court should re‑sentence Mr Richards. I agree in substance with his reasons for so deciding.
Although I regard the sentence proposed by Sulan J as merciful, I recognise the force of the mitigating circumstances upon which he relies. Accordingly, I agree that a head sentence of imprisonment for three years nine months, and a non-parole period of one year nine months, is an appropriate sentence. It should be noted that but for the time that Mr Richards has spent in custody, the head sentence and non-parole period would have been three months longer.
However, I do not agree that the sentence should be suspended. Once again, I acknowledge the weight of the factors identified by Sulan J as supporting an order that the sentence be suspended. But I consider that the prevalence of the offence, its impact on the community, and Parliament’s approach to the seriousness of the offence, outweigh…

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 Richards

Details

AGLC: R v Richards [2006] SASC 60
Case: [2006] SASC 60
Decision Date: 3 March 2006

CaseChat Overview and Summary

In the case of R v Richards, the appellant, Richards, was convicted by a jury of aggravated serious criminal trespass in a place of residence and theft. The house was unoccupied at the time of the offence, during which approximately $33,000 worth of property was taken. Richards was sentenced to six years imprisonment with a non-parole period of three years. The appeal was against the sentence, with the grounds being that the sentence was manifestly excessive and that the sentencing judge erred in failing to find good reason to suspend the sentence.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether there were grounds to suspend the sentence. The court considered the nature and seriousness of the offence, the appellant's criminal history, and the need for deterrence and denunciation. The court also examined whether the sentence was disproportionate to the crime and whether there were mitigating factors that warranted a reduced sentence.

The court found that the sentence was manifestly excessive, taking into account the time already spent in custody. The court also found that there were good reasons to suspend the sentence, as the appellant had expressed remorse and had a minimal criminal history. Consequently, the appeal was allowed, the sentence of the District Court was set aside, and Richards was sentenced to three years and nine months imprisonment with a non-parole period of one year and nine months, suspended for a period of two years.

This decision highlights the importance of proportionality in sentencing and the consideration of mitigating factors in criminal cases. The court balanced the need for punishment and deterrence with the individual circumstances of the offender, resulting in a reduced sentence that took into account the time already served by the appellant.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of appeal are that the sentence, in all the circumstances, was manifestly excessive and that the sentencing judge erred in failing to find good reason to suspend the sentence. Factual background The circumstances of the offending were that on the afternoon of Sunday, 6 July 2003, the sole occupier of a house at 33 Leader Street, Goodwood, left his home locked and secured to go to a barbeque. He returned shortly after midnight to discover that a person or persons had broken into his home. Entry had been gained at the back of the house, and a considerable amount of damage had been done. A large quantity of furniture and electrical goods, together with items of the occupant’s clothing, had been removed from the house. The value of the property stolen was approximately $33,000. When police investigated, they found the appellant’s fingerprints on items of broken glass and on a door. He was interviewed by the police on 16 August 2003. DNA of another person, to whom I shall refer as ‘S’, was found on an empty carton of iced coffee that had been left at the premises. The appellant and S were arrested and charged. S was not tried at the same time as the appellant, because he had left the jurisdiction. S has since been arrested. At the time that the appellant was sentenced, S had not been tried for the offences. The appellant pleaded not guilty and, after a three-day trial, he was convicted. During the trial, the appellant gave evidence on oath denying his involvement. The appellant’s evidence was that, at the time of the offence, he was living nearby. He was walking home from the Goodwood Park Hotel when he met a person, Eric, who he had met on prior occasions. Eric asked him if he was interested in buying a laptop computer. The appellant said he possibly was, because his son was about to start high school. He said he went with Eric into the property at 33 Leader Street, Goodwood. Eric entered through the backdoor. The appellant noticed broken glass. It did not occur to him that the property had been broken into. The appellant said that Eric told him that he, Eric, had locked his keys in the house and had to break in. The appellant gave evidence that he was in the back section of the house and, whilst he was there, he picked up some pieces of glass that were lying around. The appellant said he was taken into a room and shown a computer. The price that Eric was demanding was too high, and the appellant then left the house. As he was leaving, the appellant picked up a louvre and slid it into its correct position. In cross-examination, he agreed that he knew a person by the name of S. He said that S, together with another acquaintance of the accused, had borrowed the appellant’s car some days earlier. He said that S was not at the house when he was there with the man, Eric. He denied having stolen any property, and he denied having broken into the house. Not surprisingly, the appellant was convicted by a jury. During his counsel’s submissions on sentence, the appellant admitted that he was involved in the offending. He expressed remorse for his conduct.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Richards [2006] SASC 60

Most Recent Citation

Mcnickle v White & White (No. 2) Addendum To Judgment Delivered On 14 February 2006 [2006] SADC 43

Cases citing this decision · 7 of 7 shown

McDermott v Police
[2014] SASC 175 Para 17

…v O'Toole [2013] SASCFC 18 at [50] (Peek J with whom Sulan J agreed); R v Fowler [2006] SASC 18 at [58] (Gray and Layton JJ); R v Richards [2006] SASC 60 at [58]-[63] (Sulan J with whom Doyle CJ and Nyland J agreed); Ferguson v Police [2006] SASC 196 and Zafry v Police [2009] SASC 191.…
R v PHAM
[2014] SASCFC 95 Para 18

…xample R v O’Toole [2013] SASCFC 18 at [50] (Peek J with whom Sulan J agreed); R v Fowler [2006] SASC 18 at [58] (Gray and Layton JJ); R v Richards [2006] SASC 60 at [58]-[63] (Sulan J with whom Doyle CJ and Nyland J agreed); Ferguson v Police [2006] SASC 196 and Zafry v Police [2009] SASC 191.…
Dighton v The Nominal Defendant (No 4)
[2012] SADC 24 Para 10

…departing from the ‘default’ position. [11] (2006) 243 LSJS 285; [2006] SASC 18; BC200600199 per Gray and Layton JJ [12] (2006) 160 A Crim R 120; [2006] SASC 60; BC200600935 at [58] per Sulan J (Doyle CJ and Nyland J agreeing)…
R v Belczacki
[2012] SASCFC 4 Para 3

…is counsel’s submissions on sentence. He was sentenced by the trial Judge to six years imprisonment with a non-parole period of three years. [33] [2006] SASC 60.…
R v H, Mg
[2008] SASC 264 Para 2

…Whilst the effects of imprisonment upon family members can be taken into account and can be used to mitigate a sentence (see R v Richard [2006] SASC 60), in my view, there is nothing to show that the sentencing judge did not properly balance the aspect of general deterrence for serious offences of this kind as ag…
R v Bryden
[2006] SASC 203 Para 27

…imprisonment upon the welfare of your dependants. I have been referred to the remarks of the Court of Criminal Appeal in the case of R v Richards [2006] SASC 60. As well, I have had regard to the observations in the psychological report. I am not persuaded that good reason exists for suspending the sentence in yo…
Mcnickle v White & White (No. 2) Addendum To Judgment Delivered On 14 February 2006
[2006] SADC 43 Para 8

…05) 223 ALR 662; (2005) 80 ALJR 444]. … …………………… [7] See also R v Hill [2005] SASC 380, R v Fowler [2006] SASC 18, R v Richards [2006] SASC 60 [8] Anderson J was of a like view at [56] [38] The test for suspension established by the legislature is whether, in the discretion of the court, good reason exists to sus…

View all 7 citing cases →

Cases cited in this decision · 7 of 7 shown

R v Fowler
[2006] SASC 18 Para 25

…was recently considered in the case of R v Fowler .[18] In that case Perry J referred to the joint judgment of Gray and Layton JJ and said: [18] [2006] SASC 18. I agree with the comments of Gray and Layton JJ to the effect that the test for suspension is as prescribed in the statute, namely, whether the court “t…
R v Osenkowski
[2005] SASC 142 Para 2

…here is always a place for the exercise of mercy and leniency when a judge forms the view, almost intuitively, that leniency may lead to reform. [25] (1982) 30 SASR 212.…
Neill v Police
[1999] SASC 270 Para 15

…See also R v Penno ,[12] Bates v Police ,[13] and Neill v Police .[14] [12] (2004) 236 LSJS 457. [13] (1997) 70 SASR 66. [14] [1999] SASC 270.…
Police v Cadd
[1997] SASC 6187 Para 14

…alty, but in exceptional cases that hardship may be a reason to do so. I consider that Perry J accurately summarised the position in Bates v Police (1997) 70 SASR 66 at 69, where after considering what this Court said in Adami he said: “Properly understood, I do not think that the explanation of the principle which…
But for the plea of guilty it would have been four years. Mr A Crocker points to the fact that in R v Delphin
[2001] SASC 203 Para 31

…s of serious criminal trespass and aggravated serious criminal trespass were created by amendment to the CLCA, taking effect on 25 December 1999. [3] (2001) 79 SASR 429.…
R v Staker
[2001] SASC 266 Para 4

…lly assaulting occupants in the house. There can be no identified standard or range of penalties for this type of offending. See: R v Staker. [7] [7] [2001] SASC 266.…
[2001] SASC 420
[2001] SASC 420 Para 14

…fect which it has in that respect in the particular case is out of the ordinary.” That is the approach that I would take in this case.[11] [10] (2001) 81 SASR 164. [11] (2001) 81 SASR 164 at 168.…

Legislation cited in this decision · 3

Criminal Law (Sentencing) Act 1988 (SA)
10(1)(n) 2 mentions (from Para 12)
Criminal Law Consolidation Act 1935 (SA)
168 2 mentions (from Para 8)
Summary Procedure Act 1921 (SA)
5(3)(a)(iii)(D) 1 mention (from Para 8)