R v Smith - [2005] SASC 212

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMITH
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice Layton)
10 June 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeal against sentence - appellant pleaded guilty to one count of aggravated serious criminal trespass in a place of residence, two counts of rape and one count of aggravated robbery - appellant also sentenced in the District Court for offences of serious criminal trespass in a place of residence and larceny, transferred from the Magistrates Court - appellant sentenced to one penalty of fifteen years imprisonment with a non-parole period of eleven years -whether head sentence was manifestly excessive - whether non-parole period was manifestly excessive - whether appellant had sufficient opportunities in the past to assist his rehabilitation - whether adequate weight was given to the appellant's personal circumstances - whether too much weight was given to general and personal deterrence - whether the sentencing judge was sitting as a magistrate when sentencing for the matters transferred from the Magistrates Court - head sentence and non-parole periods not manifestly excessive - protection of the community of paramount importance in the case of repeat offenders - all relevant factors were considered by the sentencing judge - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 18A, s 19; Magistrates Act 1983 (SA) s 22, referred to.
Brock v Attorney-General (1984) 36 SASR 161; Dinsdale v The Queen (2000) 202 CLR 321; R v Coleman (2001) 122 A Crim R 230; R v Delphin (2001) 79 SASR 429; R v Gibbs (2004) 89 SASR 30; R v Siozios [2004] SASC 299; Tarasenko v Boylan (1992) 58 SASR 587, considered.

R v SMITH
[2005] SASC 212
Court of Criminal Appeal: Sulan, White and Layton JJ

SULAN and LAYTON JJ: The appellant appeals against a sentence imposed by the District Court on 11 March 2004. The appellant pleaded guilty to aggravated serious criminal trespass in a place of residence, two counts of rape and one count of aggravated robbery. All of the offences were committed late in the afternoon on 5 July 2003.
At the request of the appellant, two additional offences of serious criminal trespass in a place of residence and larceny, committed in February 2003, were transferred from the Magistrates Court for sentence by the judge.
The judge imposed one penalty of fifteen years imprisonment, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Act”). He fixed a non-parole period of eleven years. The sentence was to commence on 5 March 2004, which was the date upon which the appellant had completed serving the balance of a sentence resulting from a breach of parole.
The offences of aggravated serious criminal trespass in a place of residence, rape and aggravated robbery all…

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.

Continue reading R v Smith

Details

AGLC: R v Smith [2005] SASC 212
Case: [2005] SASC 212
Decision Date: 10 June 2005

CaseChat Overview and Summary

The case of R v Smith involved the appellant, who had a lengthy criminal history, appealing against the sentence imposed by the District Court. The appellant pleaded guilty to several serious offences, including aggravated serious criminal trespass in a place of residence, rape, and aggravated robbery. He was sentenced to a total of fifteen years imprisonment, with a non-parole period of eleven years. The appeal focused on the severity of the sentence, particularly whether the head sentence and the non-parole period were manifestly excessive. Additionally, the appeal considered whether the sentencing judge had given adequate weight to the appellant's personal circumstances, including his history of sexual abuse and substance abuse, and whether too much emphasis was placed on general and personal deterrence. The court also examined whether the sentencing judge was appropriately qualified to sentence the appellant for offences transferred from the Magistrates Court.

The central legal issues in this appeal revolved around the principles of sentencing, specifically whether the sentence was manifestly excessive and whether the sentencing judge had adequately considered the appellant’s personal circumstances and the need for rehabilitation. The court needed to determine if the protection of the community warranted a lengthy sentence for a repeat offender and whether the sentencing judge had appropriately balanced the need for deterrence with the potential for rehabilitation. Furthermore, the court had to assess whether there were procedural errors, such as the sentencing judge’s authority to impose the sentence for the transferred offences. These issues were crucial in deciding whether the appeal against the sentence should be upheld.

In addressing the appeal, the court found that the head sentence and the non-parole period were not manifestly excessive. The court emphasised the paramount importance of protecting the community in cases involving repeat offenders. The sentencing judge had considered all relevant factors, including the appellant's extensive criminal history, the seriousness of the offences, and the need for deterrence. The court held that the sentencing judge had given adequate weight to the appellant's personal circumstances, including his history of abuse and substance dependency, but also recognised the need to protect the community. The court concluded that no procedural errors had occurred, and that the sentence imposed was appropriate given the appellant’s history and the nature of the crimes committed. Consequently, the appeal was dismissed.

The court upheld the sentence imposed by the District Court, finding no grounds for interference. The appellant's lengthy criminal history and the seriousness of the current offences warranted a substantial sentence to ensure the protection of the community. The court determined that the sentencing judge had appropriately balanced the need for deterrence with the potential for rehabilitation and had considered all relevant factors in imposing the sentence.

Orders

Orders of the court

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Background

Background to the litigation

His first sentence of imprisonment as an adult was in May 1999, when he received three months imprisonment for offences of larceny and interfering with a motor vehicle. In June 1999, he was convicted of indecent assault. He appeared before the Elizabeth Magistrates Court on a number of occasions. On 30 June 2000, he received a six month sentence of imprisonment which was suspended upon him entering into a bond to be of good behaviour for two years. Conditions imposed included supervision. On 16 February 2001, he received a sentence of two years imprisonment with a non-parole period of sixteen months. He had breached the bond within four months of it having been imposed. On 6 August 2003, he received a sentence of fourteen months imprisonment, with a non-parole period of seven months, for an offence of non-aggravated serious criminal trespass and larceny. We have dealt with his antecedents in some detail because his counsel submitted that he had not had sufficient opportunities in the past to assist his rehabilitation. We will deal with that submission later in our reasons. The appellant’s background and psychological profile The judge had regard to a psychological report of Mr Richard Balfour. The appellant is an Aboriginal man whose parents are from the Yorke Peninsular area. The appellant has primarily been raised in the Adelaide northern suburbs, but has lived alternatively between Adelaide and Port Germaine. He had a difficult and dysfunctional home life as a child. When he was six years old, he was sexually abused by a seventeen-year-old female cousin. He was also sexually abused from the age of about ten until he was twelve by a female family friend, who was aged in her twenties. He was psychologically abused during his childhood by members of his family. His father was an alcoholic. The appellant began to run away from home from about the age of ten. He did not obtain an adequate education. He has never had employment, and is a chronic drug and alcohol abuser. Mr Balfour concluded that the appellant is of low intelligence, with poor literacy and numeracy skills. He has low self-esteem and poor social and living skills. His life has been dominated by his drug and alcohol abuse and associated offending. Mr Balfour concluded that his presentation and personal history is consistent with a diagnosis of a personality disorder, characterised by anti-social traits. Mr Balfour characterised the rape as being opportunistic. He concluded that, due to the sexual abuse, the appellant may have developed a sexual attraction to older women. He is in need of rehabilitation for his sexual offending. The rehabilitation program recommended by Mr Balfour needs to be supervised and structured. It is an extensive long-term program involving counselling, psychiatric and psychological intervention, an education program, employment training and close supervision. Mr Balfour noted that there were no rehabilitation services for serious sex offenders in South Australian gaols.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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