R v Slade No. DCCRM-03-61 - [2003] SADC 48

R V ALAN PAUL SLADE
[2003] SADC 48
Judge Muecke
Criminal

At about 1.00 pm on Thursday 12 September 2002 two men were seen breaking a window of and entering residential premises at Northolt Road, Osborne. The two men left the premises by jumping the back fence. A short time later, and nearby, police arrested the defendant in the front yard of residential premises at Medina Street, Osborne.
The defendant was charged with an aggravated offence of serious criminal trespass in a place of residence, in that he committed the trespass in company with another person. He was also charged with larceny, in that he stole jewellery and cigarettes from the premises at Northolt Road, Osborne. It was alleged that the jewellery and cigarettes were the property of the resident of Northolt Road, Osborne.
On 18 December 2002 the defendant pleaded guilty to these two charges in the Port Adelaide Magistrates Court. He was remanded to 3 February 2003 for sentence in this court. He came before me on Monday 3 February 2003 in the arraignment list. On that day I was informed by his counsel that there was “a remaining small point to do with what was found in the premises” at Northolt Street. Counsel said: “We say we went to get Indian hemp from that premises there, knowing it was there, we saw it there and we found it there. There is evidence to the contrary there was no hemp in the premises on the depositions from the householder ... my instructions are to say to the sentencing judge that we went there with the intention of getting Indian hemp and we remain silent on whether there was anything there or not ... we could proceed to sentence on that basis, even if there is some dispute about what was actually there ...” Counsel for the DPP informed me that his position was that there was no cannabis at the residence. I remanded the matter to Tuesday 25 February 2003.
On the adjourned date the allocutus was given to the defendant. Counsel for the DPP tendered his antecedents. He also tendered a Victim Impact Statement. It had been prepared by the resident of the house at Northolt Road. Certain parts of it were read to the court. The victim was a 59 year old woman at the time her house was broken into by the defendant and another. She wrote that she had received medical treatment for severe trauma and stress as a result of the break-in. She suffered difficulty in sleeping. The Victim Impact Statement contained a copy of a letter from her general practitioner dated 25 September 2002 by which he had referred the victim to a psychologist for severe anxiety. In it he suggested that the victim see a psychologist for counselling. He had prescribed some medication for her.
Following the reading of certain parts of the statement the defendant’s counsel made some submissions. He first dealt with the basis of his client’s plea…

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.

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Details

AGLC: R v Slade No. DCCRM-03-61 [2003] SADC 48
Case: [2003] SADC 48
Decision Date: 26 March 2003

CaseChat Overview and Summary

Alan Paul Slade was convicted of aggravated serious criminal trespass and larceny. The case arose from an incident on 12 September 2002 when Slade and another man broke into a residential property at Osborne, South Australia. The defendant was arrested shortly thereafter. Slade pleaded guilty to the charges on 18 December 2002 and was sentenced on 3 February 2003. The central issue in this case was whether the defendant's intent to commit the crime, based on a belief that the victim was involved in illegal drug activities, should be considered in determining his sentence. The court held that such a belief did not warrant a lesser sentence, as it would be contrary to public policy and the primary policy of the criminal law to mitigate the sentence of an intruder based on the victim's illegal activities. The court also rejected the argument that the impact on the victim should be lessened because she was allegedly conducting illegal activities in her home.

The court further reasoned that it was not relevant to the sentencing process to determine whether there was, in fact, cannabis in the victim's home at the time of the break-in. Instead, the court focused on the impact of the defendant's actions on the victim and his lack of remorse for his offending. The court emphasised that any view suggesting that victims who are not "innocent" deserve what they get should be rejected. Consequently, the court decided to sentence the defendant based on the suffering caused to the victim, the defendant's belief that there was cannabis in the home, and his lack of remorse for his actions. The court made it clear that it would not consider the fact that the defendant believed there was cannabis in the home as a mitigating factor in his sentence.

Orders