R v Rowe

[2016] SASCFC 33

Supreme Court of South Australia

(Court of Criminal Appeal)

R v ROWE

[2016] SASCFC 33

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Acting Justice David)

24 March 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - GENERAL PRINCIPLES

Appeals against three sentences. In May 2001, the appellant committed the offences of aggravated serious criminal trespass in a non-residential building and assaulting a police officer. The appellant was convicted by the verdict of a jury on 7 February 2004.  On 30 April 2004, the appellant was sentenced by a District Court Judge to one year and eight months imprisonment. The sentence had been reduced on account of totality and for 31 months spent in custody. Because the appellant had been on parole at the time of the offending, the sentence was cumulative upon a pre-existing unexpired period of parole of 10 years, four months and nine days. The Judge fixed a non-parole period of nine years and seven months to commence from the date of sentence, 30 April 2004.

In June 2001, approximately four weeks after committing the offences that came before the District Court Judge, the appellant committed the offence of shooting with intent to cause grievous bodily harm. The appellant was convicted by the verdict of a jury on 13 December 2002 but was not sentenced until June 2005. The appellant was sentenced to 12 years imprisonment to commence at the expiration of the 2004 District Court sentence, resulting in a total period of imprisonment of 24 years and nine days. The Supreme Court Judge extended the appellant’s non-parole period by 8 years, resulting in a non-parole period of 17 years and seven months from 30 April 2004.

In June 2012, the appellant committed the offence of attempting to escape from custody to which he pleaded guilty. In April 2014, the appellant was sentenced in the District Court to a period of imprisonment of 12 months to commence at the expiration of the 2005 Supreme Court sentence, resulting in a new total period of imprisonment of 25 years and nine days. The District Court Judge extended the non-parole period by three months to 17 years and 10 months. 

The appellant has appealed against all three sentences, being the 2004 District Court sentence, the 2005 Supreme Court sentence and the 2014 District Court sentence. The appellant contends that the non-parole periods fixed in the 2004 District Court sentence and the 2005 Supreme Court sentence were manifestly excessive. The appellant further contends that the head sentence of the 2005 Supreme Court sentence was manifestly excessive when regard is had to sentences already and to be served by the appellant and the principle of totality.

In 2015, a Judge granted…