R v Siviour

Case [2016] SASCFC 51

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SIVIOUR

[2016] SASCFC 51

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Doyle)

11 May 2016

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON

The appellant pleaded guilty to a number of offences. Differing discounts were applicable in respect of the offences. The maximum discount was not given for some of the offences. No reasons were articulated for not giving the full discount. The sentencing judge imposed a term of imprisonment of 13 years, and fixed a non-paroled period of eight years. 

The appellant appealed on various grounds, contending that the sentencing judge erred in relation to the guilty plea discounts in respect of some of the offences, and that the head sentence and non-parole periods were manifestly excessive.

Held per Doyle J (Vanstone and Kelly JJ agreeing), allowing the appeal:

1.       The sentencing judge failed to articulate any reasons for not giving the full discount in respect of some of the offences.  In the circumstances of this case, this involved error and warrants this Court exercising the sentencing discretion afresh.

2.       The appellant is resentenced to a head sentence of 11 years and three months imprisonment, with a non-parole period of six years and six months.

Criminal Law Consolidation Act 1935 (SA) s 20, s 20(3), s 39, s 134, s 170(1), s 172(1); Criminal Law (Sentencing) Act 1988 (SA) s 10C(2)(a), s 10C(2)(f), s 10C(4), s 10C(4)(c), s 18A, referred to.
R v Dwyer (2015) 121 SASR 587; R v Nguyen [2015] SASCFC 40; R v McPhee [2014] SASCFC 107; R v Wakefield (2015) 121 SASR 569; R v Bridgland [2016] SASCFC 28; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Bagnato (2011) 112 SASR 39; R v Copeland (No 2) (2010) 108 SASR 398; R v Deng [2015] SASCFC 176; R v Palmer [2016] SASCFC 34, considered.

R v SIVIOUR
[2016] SASCFC 51

Court of Criminal Appeal:       Vanstone, Kelly and Doyle JJ

  1. VANSTONE J:     I would allow the appeal.  I agree with the orders proposed by Doyle J and with his reasons.

  2. KELLY J:             I would allow the appeal.  I agree with the orders proposed by Doyle J and with his reasons. 

    DOYLE J:

  3. The appellant pleaded guilty in the District Court to a number of offences committed by him on 11 May 2014.  The sentencing judge imposed a term of imprisonment of 13 years, and fixed a non-parole period of eight years.  He declined to suspend the sentence.

  4. The appellant appeals on various grounds, contending that the sentencing judge erred in relation to the guilty plea discounts in respect of some of the offences, and that the head sentence and non-parole periods were manifestly excessive.

    Background

  5. The appellant was…

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R v Siviour [2016] SASCFC 51
Case
[2016] SASCFC 51
Decision Date

CaseChat Overview and Summary

The appellant, R v Siviour, appealed against a sentence imposed by a sentencing judge in the Supreme Court of South Australia. The appeal concerned the sentencing discounts applied to guilty pleas and the overall severity of the head sentence and non-parole periods. The appellant had pleaded guilty to nine charges, including counts related to aggravated home invasion, assault, deprivation of liberty, and kidnapping, stemming from an incident involving two victims and an alleged drug debt.

The central legal issues before the court were whether the sentencing judge had erred in the application of discounts for the guilty pleas and whether the imposed head sentence and non-parole periods were manifestly excessive. The court was required to consider the gravity of the appellant's offending, which involved a planned and premeditated invasion of a home, the use of weapons, and the prolonged detention and assault of the victims over an extended period.

The Full Court of the Supreme Court of South Australia, comprising Vanstone, Kelly, and Doyle JJ, reasoned that while the sentencing judge had correctly identified the seriousness of the offences, the final sentence did not adequately reflect the totality of the appellant's criminal conduct and the lack of remorse demonstrated. The court noted that the appellant had numerous opportunities to cease his offending but failed to do so.

Allowing the appeal, the court set aside the original sentence. The appellant was resentenced to a head sentence of 11 years and three months imprisonment, with a non-parole period of six years and six months. This sentence was backdated to 11 May 2014, the date of the appellant's arrest.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals on various grounds, contending that the sentencing judge erred in relation to the guilty plea discounts in respect of some of the offences, and that the head sentence and non-parole periods were manifestly excessive. Background The appellant was arraigned on an Information dated 10 August 2015, and pleaded guilty to nine of the counts charged. The balance of the charges were the subject of a nolle prosequi. For convenience I set out the offences charged, the relevant sections of the Criminal Law Consolidation Act 1935 (SA) and the maximum penalties in respect of each offence. By way of summary of the appellant’s offending, he arrived at the home of the two victims (a male and a female) in Cowell at about 6.00 am on Sunday, 11 May 2014. Unannounced, he entered their home armed with an imitation firearm and a taser (count 1). The purpose of the invasion was apparently an attempt to recover an alleged drug debt. Once inside the victims’ residence, the appellant tasered the male victim (count 2) and threatened to taser the female victim (count 3). The appellant then tied the male victim’s ankles and wrists, and took various items of property from the premises, which he loaded into a vehicle which he had hired for this purpose (count 7). He placed the male victim in the boot of the car, and the female victim in the front of the car. The appellant then drove the vehicle to the suburbs of Adelaide, which the sentencing judge said must have taken at least five hours. During a stop near Whyalla the appellant tied the female victim’s ankles together. During a further stop after passing through Port Augusta, apparently in response to complaints from the male victim in the boot of the car, the appellant tasered the male victim (count 8). On arrival at an address in Ottoway, in the suburbs of Adelaide, the appellant removed the male victim from the boot and assaulted him in the kitchen of the house at that address (count 14). The appellant demanded payment of $4,000 on account of an alleged drug debt. Whilst the male victim was detained at the Ottoway address by an accomplice of the appellant (Mr Willscher), the appellant demanded that the female victim drive to a place where she was to steal drugs or money (count 13), but from which she managed to escape and arrange for assistance, and ultimately police intervention. The kidnapping charge (count 11) related to the appellant’s conduct described above in taking and detaining the male victim, and the false imprisonment charge (count 5) related to the detention of the female victim. On any view, the appellant’s offending was serious. It was planned, premeditated, violent and occurred over an extended period of time. There were numerous opportunities for the appellant to cease his offending during the course of the day, none of which he took. The sentencing judge aptly described the offending as involving an “unfathomable, unrestrained and sustained” episode, and out of all proportion to the perceived drug debt.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the sentencing judge did, I would backdate the sentence to 11 May 2014, when the appellant was taken into custody. Conclusion I would thus allow the appeal. I would set aside the sentence imposed by the sentencing judge. I would sentence the appellant to a head sentence of 11 years and three months imprisonment, and fix a non-parole period of six years six months. I would backdate the sentence to 11 May 2014.

Ratio Decidendi

Legal Principle Established

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