R v Simpson

Case [2016] SASCFC 83

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SIMPSON

[2016] SASCFC 83

Judgment of The Court of Criminal Appeal

(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Justice Doyle)

8 August 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION

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

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - OTHER MATTERS

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - OTHER PARTICULAR CASES

Appeal against sentence. The appellant committed 25 offences on two occasions, 19 September 2013 and 6 March 2015. The appellant pleaded guilty to all 25 offences. The appellant was sentenced to a total period of imprisonment of nine years and eight months with a non-parole period of five years, backdated to commence on 22 June 2015 when the appellant was last taken into custody. The Judge’s sentencing remarks are ambiguous as to whether the Judge imposed 25 separate sentences or utilised section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed two sentences, being one sentence for the 19 September 2013 offences and one sentence for the 6 March 2015 offences or utilised section 18A to impose the one penalty for all 25 offences.

The appellant contends (in appeal ground 1) that the Judge failed to impose a separate sentence for a serious firearm offence committed on 6 March 2015 in accordance with the requirements of section 20AAC of the Criminal Law (Sentencing) Act 1988 (SA). The appellant further contends (in appeal grounds 2 and 3) that sentences for eight of the offences committed on 19 September 2013 and four of the offences committed on 6 March 2015 were manifestly excessive and that both the total period of imprisonment of nine years and eight months and the non-parole period of five years are manifestly excessive.

Held per the Court (allowing the appeal):

1.  Observations on the differences between separate sentences for offences and a single section 18A sentence when one or more offences are serious firearm offences (at [20]-[21], [47]-[53]).

2.  On any analysis of the sentencing structure adopted by the Judge, the sentencing exercise miscarried in a number of respects.  Further, the mandatory requirements of section 20AAC were not complied with. The appeal is allowed and the District Court sentencing orders are set aside (at [55]-[56]).

3.  Section 20AAC(1)(d) precludes the utilisation of section 18A to impose a single penalty for both serious firearm offences and non-serious firearm offences.  It does not preclude the use of section 18A to impose a single penalty for multiple serious firearm offences and a different single penalty for multiple non-serious firearm offences (at [59]-[65]).

4.  The appellant is resentenced by this Court as follows:

4.1.  For counts 5, 8 and 11 on the Information dated…

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R v Simpson [2016] SASCFC 83
Case
[2016] SASCFC 83
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CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, Mr. Simpson, by the District Court. The dispute revolved around the length and structure of the sentences imposed for various offences, including those involving offensive weapons and firearms. The appeal was heard by Blue, Nicholson, and Doyle JJ.

The court was required to determine whether the original sentencing orders were manifestly excessive or inadequate, and to consider the appropriate factors for sentencing in this case. Specifically, the court had to assess the impact of the appellant's age and rehabilitation prospects on the non-parole period, and to structure the cumulative and concurrent sentences in a just manner.

The court reasoned that a lower than usual non-parole period would be beneficial for the appellant's rehabilitation, given his relative youth. They emphasized the importance of a lengthy period under supervision on parole. The court then proceeded to resentence the appellant, setting aside the original orders. This involved imposing a combination of concurrent and cumulative sentences across multiple informations and complaints, with convictions recorded with no further penalty for some counts. A non-parole period of three years and eight months was fixed, backdated to commence on 22 June 2015.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A lower than usual non-parole period should be fixed. The appellant is still relatively young and a lengthy period under supervision on parole will be very important to his rehabilitation prospects. Starting with a non-parole period of four years from which four months is deducted on account of the time served in custody and on home detention bail prior to 22 June 2015, we fix a non‑parole period of three years and eight months. The commencement of the non-parole period is also backdated to commence on 22 June 2015.Conclusion and orders We make the following orders:1. Permission to appeal on grounds 2 and 3 is granted.2. The appeal is allowed.3. The sentencing orders made in the District Court are set aside.4.The appellant is resentenced as follows.4.1.For counts 5, 8 and 11 on the Information dated 19 September 2013, using section 18A to impose the one penalty, imprisonment for 10 months and 15 days backdated to commence 22 June 2015.4.2.For count 3 on the Information dated 21 May 2014, imprisonment for one month to be served concurrently with the sentence in 4.1.4.3.For counts 3, 4, 6, 7 and 9 on the Information dated 19 September 2013, count 3 on the Complaint dated 15 October 2013 and count 4 on the Information dated 21 May 2014, in each case a conviction is recorded with no further penalty.4.4.For counts 1 and 2 on the Information dated 21 May 2014, using section 18A to impose the one penalty, imprisonment for two years, five months and three weeks to be served cumulatively on and to commence on the expiration of the sentence in 4.1.4.5.For counts 2, 10 and 12 on the Information dated 19 September 2013 and counts 1 and 2 on the Complaint dated 15 October 2013, using section 18A to impose the one penalty, imprisonment for one year and three weeks. Of this period three months and three weeks is to be served concurrently with the sentence in 4.1 and nine months is to be served cumulatively on and to commence at the expiration of the sentence in 4.4.4.6.For counts 5, 6 and 13 on the Information dated 12 June 2015, using section 18A to impose the one penalty, imprisonment for one year and five months to be served cumulatively on and to commence at the expiration of the sentence in 4.5.4.7.For count 9 on the Information dated 12 June 2015, imprisonment for six weeks to be served concurrently with the sentence in 4.6.4.8.For counts 7 and 8 on the Information dated 12 June 2015, in each case a conviction is recorded with no further penalty.4.9.For count 1 on the Information dated 12 June 2015, imprisonment for two years and four months. This sentence is to be served, as to six months, concurrently with the sentence imposed in 4.6 and otherwise, that is, as to one year and 10 months, cumulatively on and to commence at the expiration of the sentence in 4.6.5.A non-parole period of three years and eight months is fixed and is backdated to commence 22 June 2015.

Ratio Decidendi

Legal Principle Established

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