Court of Criminal Appeal: Doyle CJ, Duggan and Williams JJ
1................ DOYLE CJ....... I agree with the orders proposed by Duggan J. There is nothing that I wish to add to the reasons that he gives for making those orders.
2................ DUGGAN J..... On 4 November 1991 the applicant in this matter was sentenced in the criminal jurisdiction of this court to imprisonment for 29 years and six months. A non-parole period of 24 years was imposed. There were two components to the sentence. As to the first component, the applicant had been found guilty by a jury of six counts of armed robbery committed in October and November 1990. The armed robberies were particularly serious. One was committed on the premises of a building society and the others were committed on banks. On each occasion the applicant or his accomplice was armed with a shotgun. Large sums of money were stolen. Prior J imposed an effective head sentence of 29 years imprisonment for the armed robberies. At the hearing of the applications before this court it was pointed out that the portion of the head sentence referable to the armed robbery offences has been reduced to 20 years and six months by operation of the Statutes Amendment (Truth in Sentencing) Act, 1994.
The second component of the sentence arose out of the revocation of suspension of a previous sentence. On the day on which the first armed robbery had been committed, the applicant was sentenced to a term of imprisonment for six months which was suspended when he entered into a recognisance to be of good behaviour for a period of three years. As a result of the breaches of that recognisance Prior J revoked the suspension of the term of imprisonment and directed that the sentence be served cumulatively on the sentence of 29 years for the armed robbery offences. When sentenced by Prior J the applicant was about 34 years old. He is now about 43 years old.
On 11 February 1992, while serving this sentence, the applicant escaped from custody. Two armed men held up a prison van in which the applicant was travelling and the applicant made his escape with them. He was apprehended in New South Wales in May 1993 and extradited to South Australia.
The applicant appeared before Millhouse J on 4 August 1993 and pleaded guilty to escaping from custody and a charge of housebreaking and larceny which took place before the date on which he was sentenced by Prior J. Millhouse J sentenced the applicant to imprisonment for two years on the housebreaking offence to be served concurrently with the sentence then being served for the armed robbery offences. His Honour purported to impose a non-parole period of 21 months in relation to the two year sentence. His Honour then sentenced the applicant to imprisonment for three and a half years for the escape from custody offence to be served at the…
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 Spiero [2001] SASC 19
Case
[2001] SASC 19
Decision Date
CaseChat Overview and Summary
The case of R v Spiero was heard in the Supreme Court of South Australia by Doyle CJ, Duggan and Williams JJ. Spiero, the appellant, had previously been sentenced to 29 years and 6 months in prison for multiple armed robberies, and subsequently pleaded guilty to escaping from custody and housebreaking and larceny. The court was required to decide on Spiero's application for leave to appeal against the sentence imposed by Prior J. The appeal grounds included the excessiveness of the sentence, disparity between the sentences imposed on Spiero and his co-offender, and the alleged reformation of Spiero since his recapture.
The court first examined the jurisdiction to entertain the second application for leave to appeal. It was determined that since the previous application for leave to appeal was dismissed for want of prosecution, and not considered on its merits, a subsequent application could be made in certain circumstances. The court referred to Postiglione v The Queen and concluded that it was inappropriate to permit a subsequent application based on matters which were agitated on an earlier application. The court considered the merits of the grounds of appeal before returning to the procedural considerations.
The court found that the disparity in sentencing between Spiero and his co-offender, Mr Pepicelli, did not justify reducing Spiero's sentence. The court further found that the proposed evidence of Spiero's alleged reformation, health, and injuries sustained in prison would not be permitted as fresh evidence on an appeal against sentence. Lastly, the court held that the argument of manifest excessiveness of the sentence could not succeed on appeal.
In conclusion, the court dismissed the application to set aside the order of the Full Court which summarily dismissed the application for leave to appeal dated 30 November 1991 and refused an extension of time within which to file the notice of application for leave to appeal dated 20 November 2000. Doyle CJ, Duggan, and Williams JJ agreed with Duggan J's reasoning and outcome.