R v SCOTT - [2014] SASCFC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SCOTT
[2014] SASCFC 131
Judgment of The Full Court
(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Justice Bampton)
21 November 2014
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appeal against sentence.
The appellant pleaded guilty to one count of aggravated robbery. On 24 September 2013, at around 1.00 am, the appellant and two co-offenders stole $275 and four packets of cigarettes. One of the co-offenders lunged at the attendant with a knife causing a 4 centimetre cut. The appellant was arrested later that day and admitted his involvement upon being shown CCTV still pictures. He had drunk a large quantity of wine, some cannabis and taken a sleeping tablet. At the time of the offence, the appellant was 19 years old.
The appellant appeals, by permission, against his sentence of imprisonment for 4 years and 11 months with a non-parole period of 2 years on three grounds: the sentence was manifestly excessive; the sentencing Judge erred in concluding that the appellant's prospects of rehabilitation were not good; and the sentencing Judge erred in failing to suspend the term of imprisonment.
Held by Blue J (Nicholson and Bampton JJ agreeing) allowing the appeal:
1. The sentencing Judge erred in adopting a starting point of 7 years imprisonment and assessing the appellant's rehabilitation prospects as "not good" because it did not reflect the appellant's youth and his prospects for rehabilitation (at [23]).
2. Sentence set aside. The appellant resentenced to a term of imprisonment of 3 years and 4 months (based on a starting point of 5 years) with a non-parole period of 1 year and 3 months commencing on 26 March 2014 (at [25]-[26]).
3. In the circumstances, there is not "good reason" to suspend the term of imprisonment (at [30]).
4. Appeal allowed (at [31]).
Criminal Law Consolidation Act 1935 (SA) s 137; Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 18A, s 38; Young Offenders Act 1993 (SA) s3, s 23, referred to.
R v Blackmore [2004] SASC 298; (2004) 235 LSJS 272; R v Lumsden [2000] SASC 49; R v Place [2002] SASC 101; (2002) 81 SASR 395; R v Weetra [2006] SASC 275, discussed.
R v Creed (1985) 37 SASR 566; R v Miller [2000] SASC 16; 76 SASR 151; R v Weaver (1973) 6 SASR 265, considered.

R v SCOTT
[2014] SASCFC 131
Court of Criminal Appeal: Blue, Nicholson and Bampton JJ
BLUE J:

This is an appeal, by permission, against sentence.
The appellant pleaded guilty in the Magistrates Court to one count of aggravated robbery[1] and was committed for sentence to the District Court. The offence was…

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 SCOTT

Details

AGLC: R v Scott [2014] SASCFC 131
Case: [2014] SASCFC 131
Decision Date: 21 November 2014

CaseChat Overview and Summary

In *R v Scott*, the Court of Appeal of Victoria considered an appeal against a sentence imposed on the appellant. The dispute concerned the appropriateness of the sentencing judge's assessment of the appellant's rehabilitation prospects and the resulting sentence.

The legal issues before the Court of Appeal were whether the sentencing judge erred in their approach to determining the starting point for imprisonment and in assessing the appellant's prospects for rehabilitation, and consequently, whether the sentence imposed was manifestly excessive. The court was also required to consider whether there was a "good reason" to suspend the term of imprisonment.

The Court of Appeal found that the sentencing judge had erred by adopting an overly high starting point for imprisonment and by failing to adequately consider the appellant's youth and genuine prospects for rehabilitation. The court applied the principles that sentencing must reflect the purpose of reformation and rehabilitation, particularly in the context of younger offenders. The court determined that the original sentence did not adequately reflect these considerations.

The appeal was allowed, the original sentence was set aside, and the appellant was resentenced to a term of imprisonment of 3 years and 3 months, with a non-parole period of 1 year and 3 months, commencing on 26 March 2014. The court concluded that, in the circumstances, there was no "good reason" to suspend the term of imprisonment.

Orders

Orders of the court

1. The sentencing Judge erred in adopting a starting point of 7 years imprisonment and assessing the appellant's rehabilitation prospects as "not good" because it did not reflect the appellant's youth and his prospects for rehabilitation (at [23]).

2. Sentence set aside. The appellant resentenced to a term of imprisonment of 3 years and 4 months (based on a starting point of 5 years) with a non-parole period of 1 year and 3 months commencing on 26 March 2014 (at [25]-[26]).

3. In the circumstances, there is not "good reason" to suspend the term of imprisonment (at [30]).

4. Appeal allowed (at [31]).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the light of these considerations, I am unable to find good reason to suspend in this case.Conclusion I allow the appeal. I set aside the sentence imposed by the Judge. I re-sentence the appellant to a term of imprisonment of 3 years and 3 months, with a non-parole period of 1 year and 3 months, with both to commence on 26 March 2014. NICHOLSON J: I agree with Blue J. BAMPTON J: I agree that the appeal should be allowed and with the reasons of and orders proposed by Blue J.

Ratio Decidendi

Legal Principle Established

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