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
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
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Background
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Evidence
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Decision
Reasons for decision
Ratio Decidendi
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Established by: PERRY J
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