R v Simpson

Case [2004] SASC 307

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SIMPSON

Judgment of The Court of Criminal Appeal

(The Honourable Justice Perry, The Honourable Justice Nyland and The Honourable Justice Gray)

1 October 2004

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 - WHEN GRANTED

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - LARCENY OR STEALING

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT

Appeal against sentence - the appellant was sentenced in the District Court for multiple offending to a term of imprisonment of 11 years with a non parole period of six years - offending included multiple counts of aggravated criminal trespass, non-aggravated criminal trespass and larceny - offending involved between $350,000 and $400,000 of property - sentence appealed on the grounds that the sentence imposed was manifestly excessive; the sentencing judge erred by sentencing the appellant in relation to four different groups of offences and failed to take into account whether the offences formed a course of conduct; and that the sentencing judge failed to make an appropriate reduction for the appellant's guilty pleas and cooperation with investigating authorities - consideration of jurisdiction of court to determine appeals heard in District Court after originating in the Magistrates Court - discussion of section 19(3) of the Criminal Law (Sentencing) Act 1988 (SA) - consideration of the principle of totality and discussion of section 18A of the Criminal Law (Sentencing) Act - consideration of approach to be taken when sentencing for related offences - consideration of appellant's prospects of rehabilitation - consideration of appellant's cooperation with the investigating authorities - consideration of appellant's early guilty plea, contrition and remorse.

Held - sentence imposed in the District Court manifestly excessive - sentencing judge failed to have due regard to the appellant's rehabilitation, the sentencing judge failed to make an appropriate reduction for the pleas of guilty, contrition and remose and the appellant's cooperation with respect to offending that would otherwise be unresolved - appeal allowed, sentence imposed in the District Court set aside - appellant resentenced -  serious offending called for immediate custodial sentence - appellant sentenced to head sentence of 9 years and 6 months imprisonment with a non parole period of 5 years.

Magistrates Court Act 1991 (SA) s 42; Criminal Law (Sentencing) Act 1988 (SA) s 10(1), s 18A, s 19(3); Supreme Court Rules 1988 (SA) r 96C; Criminal Law (Consolidation) Act 1935 (SA) s 352(1)(a)(iii), referred to.
R v Gibbs [2004] SASC 187; The Attorney General v Tichy (1982) 30 SASR 84; R v Elliot [2001] SASC 101; Griffiths v The Queen (1988-89) 167 CLR 372; Skrjanc v R (1994) 71 A Crim R 347; R v Major (1998) 70 SASR 488; R v Kelly [2000] SASC 293; R v Symonds [1999] SASC 217

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AGLC
R v Simpson [2004] SASC 307
Case
[2004] SASC 307
Decision Date

CaseChat Overview and Summary

In the case of R v Simpson, the appellant, Alfred Simpson, appealed against his sentence which was imposed by the District Court. The appellant was sentenced to 11 years imprisonment with a non-parole period of six years for multiple offences, including aggravated criminal trespass, non-aggravated criminal trespass, and larceny. The appellant argued that the sentence imposed was manifestly excessive, the sentencing judge erred by sentencing in relation to four different groups of offences, and the judge failed to make an appropriate reduction for the appellant's guilty pleas and cooperation with investigating authorities. The appeal was heard in the South Australian Court of Criminal Appeal, which has jurisdiction to determine appeals against sentence imposed by the District Court.

The court considered whether the sentence imposed by the District Court was manifestly excessive, and whether the sentencing judge erred in sentencing the appellant in relation to four different groups of offences. The court also considered whether the sentencing judge failed to make an appropriate reduction for the appellant's guilty pleas and cooperation with investigating authorities. The court examined the principle of totality, which requires that the sentence imposed for related offences be considered as a whole, rather than separately. The court also considered the appellant's prospects of rehabilitation, his cooperation with the investigating authorities, and his early guilty plea, contrition and remorse.

The court found that the sentence imposed by the District Court was manifestly excessive. The sentencing judge failed to have due regard to the appellant's rehabilitation, failed to make an appropriate reduction for the pleas of guilty, contrition and remorse, and failed to take into account the appellant's cooperation with respect to offending that would otherwise be unresolved. The court allowed the appeal, set aside the sentence imposed by the District Court, and resentenced the appellant to a head sentence of 9 years and 6 months imprisonment with a non parole period of 5 years. The court found that the serious offending called for an immediate custodial sentence, but that the appellant's cooperation with the investigating authorities, his early guilty plea, contrition and remorse, and his prospects of rehabilitation warranted a reduction in sentence.

The court made a final order that the appeal be allowed, the sentence imposed by the District Court be set aside, and the appellant be resentenced to a head sentence of 9 years and 6 months imprisonment with a non parole period of 5 years. The court found that the overall offending was very serious indeed, and represented a persistent course of criminal conduct extending over a long period of time. The appellant has a poor criminal record, and although he is not to be sentenced again for that, this circumstance gives very little buoyancy to his prospects of successful rehabilitation. On the other hand, the court found that a fairly considerable allowance in favour of the appellant should be made on account of his cooperation with the authorities, which brought to light a number of offences upon which he otherwise would not have been charged. The court took a broad view of the sentencing process and found that the final result of the process followed by the sentencing judge was a sentence which was manifestly excessive, notwithstanding the seriousness of the offending.

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

PERRY J
At the end of the day, the function for this Court is simply to determine whether the overall sentence which was imposed, however it was reached, has been shown to be manifestly excessive.Conclusion The overall offending was very serious indeed, and represented a persistent course of criminal conduct extending over a long period of time. The appellant has a poor criminal record, and although he is not to be sentenced again for that, this circumstance gives very little buoyancy to his prospects of successful rehabilitation, even if the measures suggested by Dr Balfour were to be put into effect. On the other hand, I agree with Gray J that a fairly considerable allowance in favour of the appellant should be made on account of his co-operation with the authorities, which brought to light a number of offences upon which he otherwise would not have been charged. In a matter such as this it is impossible to do other than to take a broad view of the sentencing process. While, as I have indicated, the sentencing judge is not to be criticised for taking the approach which he did, I am inclined to think that the preferable approach would have been to go simply to a single head sentence. In all the circumstances, I agree with Gray J that the final result of the process followed by the sentencing judge was a sentence which was manifestly excessive, notwithstanding the seriousness of the offending. I agree with Gray J that an appropriate starting point is 18 years imprisonment. I agree with the other reductions and allowances which he makes, leading to a head sentence of 9 years and 6 months. I agree also that an appropriate non-parole period is 5 years. I agree that the appeal should be allowed, and the sentence varied accordingly. NYLAND J: I agree with the remarks of Perry J as to the approach taken by the sentencing judge but I otherwise agree that the appeal should be allowed for the reasons expressed by Gray J and I agree with the sentence proposed by him.GRAY J: This is an appeal against sentence. On 12 March 2004 the appellant, Alfred Simpson, was sentenced in the District Court for multiple offending to a term of imprisonment of 11 years. A non parole period of six years was fixed. The Charges On 17 February 2004 the appellant pleaded guilty to two counts of aggravated serious criminal trespass to residential property, 25 counts of non aggravated serious criminal trespass to residential property, two counts of non aggravated serious criminal trespass to non residential property, 31 counts of larceny, one count of attempted property damage, one count of receiving and two counts of unlawful possession and illegal use of a motor vehicle without consent. The offending resulted in the breach of a suspended sentence bond. The majority of the dishonesty offences related to serious criminal trespass occurring during the period of 2001 to 2003. On 17 December 2003 the appellant admitted additional uncharged conduct. The conduct comprised one offence of aggravated serious criminal trespass in a place of residence, 32 offences of serious criminal trespass in a place of residence and 31 offences of larceny.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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