R v Smith - [2002] SASC 330

R v SMITH
[2002] SASC 330
Court of Criminal Appeal: Debelle, Williams and Martin JJ (ex tempore)

DEBELLE J. I agree with the reasons of Martin J and the sentence he proposes.
I, too, emphasise that this sentence should not be treated as setting any kind of norm for a sentence for this kind of offending. Martin J has identified the circumstances which give rise to this prisoner being treated with a degree of mercy. As his reasons demonstrate, the court is only too clearly aware of the concern in the public about the prevalence of this kind of offending, but there will always be instances where it is appropriate for the court to be lenient and to provide a realistic opportunity for rehabilitation. This is just such an instance.
MARTIN J. The appellant pleaded guilty in the Magistrates’ Court to aggravated serious criminal trespass and to larceny. In the District Court, the learned sentencing judge imposed a single sentence of 34 months imprisonment and fixed a non-parole period of 22 months. The sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of 30 months on the condition that, for the first 18 months of the bond, the appellant be under the supervision of a Community Corrections Officer. Other conditions included a requirement that the appellant obey the lawful directions of the Officer concerning participation in programs designed to assist the appellant. The appellant appeals against the sentence on the basis that the head sentence is manifestly excessive.
The offences occurred shortly after 3.30 am on 5 December 2001. During the afternoon prior to the commission of the offences, the appellant began drinking with two other aboriginal persons whom he had only just met. Over a period of approximately 12 hours, he consumed a large quantity of alcohol and some valium. The sentencing judge accepted that by 3.00 am on 5 December 2001 the appellant was grossly intoxicated.
The other men invited the appellant to go for a drive with them. Thinking he would eventually be driven home, the appellant accepted the offer. However, he was driven to the premises of a clothing retailer on The Parade at Norwood where one of the other men smashed the glass entry doors. Although the appellant had been unaware of the intention of the other men to commit the crime, after the glass doors had been smashed he entered the premises with the other men and seized a quantity of clothing.
The attention of a passing police patrol was drawn to the premises by the alarm. As a police officer approached the smashed doors, the appellant emerged carrying a quantity of clothing. Called on to stop, the appellant dropped the clothing and made as if to threaten the officer with a tyre lever. He then turned and ran off. The officer apprehended the appellant and took him into custody. The other two offenders were confronted by a second officer, but both escaped.
The objective…

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 [2002] SASC 330
Case: [2002] SASC 330
Decision Date: 20 September 2002

CaseChat Overview and Summary

The case of R v Smith involved an appeal by the appellant against the sentence imposed by the District Court. The appellant had pleaded guilty to charges of aggravated serious criminal trespass and larceny. The District Court had imposed a sentence of 34 months imprisonment with a non-parole period of 22 months. The appellant appealed on the grounds that the head sentence was manifestly excessive. The key legal issues before the Court of Criminal Appeal were whether the starting point for the sentence was appropriate and whether the reduction for the plea of guilty was adequate.

The Court of Criminal Appeal held that the starting point of 40 months was too high, as it did not sufficiently account for the appellant's youth and personal circumstances. The Court found that a starting point of 22 months for the criminal trespass offence and 12 months for the offence of larceny was more appropriate. The Court also determined that a 15% reduction for the plea of guilty was at the lower end of the appropriate scale, and a reduction of approximately 20% was more appropriate. The Court allowed the appeal and ordered a new head sentence of 27 months imprisonment with a non-parole period of 14 months. The sentence was to be suspended upon the appellant entering into a bond in his own recognisance for a period of 24 months, during which he would be under the supervision of a Community Corrections Officer. The Court emphasised that the sentence should not be treated as setting a standard for similar offences.

The final orders of the Court of Criminal Appeal were that the appeal be allowed, the original sentence be set aside, and a new sentence be imposed with a non-parole period of 14 months. The sentence was to be suspended upon the appellant entering into a bond in his own recognisance for a period of 24 months, during which he would be under the supervision of a Community Corrections Officer.

Orders