R v Sprecher - [2015] SASCFC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SPRECHER
[2015] SASCFC 76
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
20 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - SENTENCE - AGGRAVATED OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
The applicant was sentenced in the District Court on 5 September 2014 for previously convicted offences of aggravated serious criminal trespass, theft, illegal interference and breach of bond. The Judge ordered each sentence to be served cumulatively for a total sentence of three years imprisonment.
A drivers licence disqualification was imposed for 18 months.
The applicant appeals and applies for permission to this court to appeal the sentences.
Held (per Kourakis CJ, Gray and Stanley JJ agreeing):
1. Section 86A(2) of the Criminal Law Consolidation Act 1935 (SA) requires a mandatory disqualification of 12 months. There is no Judicial discretion in increase or decrease the period.
2.    The appellant had served a period of four months which had been suspended under a bond. The order of the Judge to then revoke the suspended sentence has no effect and such time should not have been included in the total sentence.
3.   The sentence for aggravated serious criminal trespass is not manifestly excessive.
4.    The sentencing Judge did not predetermine that a suspended sentence would not be granted.
Criminal Law Consolidation Act 1935 (SA) s 86A(2); Crimiinal Law (Sentencing) Act 1988 (SA) s 18A, s 57; Magistrates Court Act 1991 (SA) s 22, s 42, referred to.
R v Allen (2002) 81 SASR 434, applied.
Germain v Police [2006] SASC 340; R v Al-Zuain (2009) 103 SASR 567; R v Arts and Briggs [1998] 2 VR 261; R v Governor of Brockhill Prison; ex parte Evans [1997] QB 443; R v Hughey [2007] SASC 452, considered.

R v SPRECHER
[2015] SASCFC 76
Court of Criminal Appeal: Kourakis CJ, Gray and Stanley JJ

KOURAKIS CJ: The applicant has appealed, or seeks permission to appeal, against sentences imposed in the District Court on 5 September 2014. The sentences imposed by the Judge, which are subject to appeals or applications for permission to appeal, are as follows:
·On convictions of the offences of aggravated serious criminal trespass and theft committed in March 2014 – two years and five months (reduced from a notional head sentence of four years for an early guilty plea);
·On a conviction of the offence of illegal interference with a motor vehicle committed on 28 January 2014 – three months imprisonment and a driver’s licence disqualification of 18 months; and
·On the breach of a bond entered into on the suspension of a sentence of…

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 Sprecher

Details

AGLC: R v Sprecher [2015] SASCFC 76
Case: [2015] SASCFC 76
Decision Date: 20 May 2015

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, R v Sprecher, by a sentencing judge. The appellant had pleaded guilty to certain property offences, which were described as serious.

The legal issues before the appellate court were whether the sentencing judge erred in failing to suspend the sentence of imprisonment and whether fresh evidence, relating to a complaint made by the appellant to the police about a violent assault, should be admitted on appeal.

The court, comprising Kourakis CJ, Gray and Stanley JJ, found that the appellant had not expressly sought a suspended sentence at the original sentencing hearing. Furthermore, due to the appellant's serious prior record and the nature of the current offences, coupled with an admitted breach of a previously suspended sentence, the Sentencing Act precluded the judge from suspending any sentence of imprisonment. Consequently, the court held that the grounds of appeal regarding the failure to suspend the sentence lacked merit. Regarding the fresh evidence, the court refused permission to adduce it on appeal, as no explanation was provided for its non-disclosure to the sentencing judge.

Permission to appeal was refused on all grounds, except for a complaint concerning the length of a licence disqualification, which was not elaborated upon in the provided text.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant never expressly sought a suspended sentence. The Judge’s remarks did no more than recognise the inevitable. The appellant had an appalling prior record. The offences for which he was before the Court were serious. Indeed, on the inevitable revocation of the suspended sentence for the breach which the appellant had admitted the Sentencing Act the Judge was precluded from suspending any sentence of imprisonment. The appellant’s complaint on this ground has no merit. For the same reasons, there is no merit in the complaint that the Judge erred in failing to exercise his discretion to suspend the sentence. Fresh evidence The applicant placed evidence before the Court that he had made a complaint to police with respect to a serious violent assault committed against him and his family. The appellant contended that that information should be received as fresh evidence on the appeal. The Judge was told nothing of that circumstance. No explanation was advanced for the failure to provide the material to the sentencing Judge. I would refuse permission to adduce that material on appeal. I would refuse permission to appeal on the sentence application other than on the ground complaining of the length of the licence disqualification. GRAY J: I agree with the orders proposed by the Chief Justice. I do not wish to add to his reasons. STANLEY J: I agree with the Chief Justice.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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