R v St Clair No. Sccrm-00-38 - [2000] SASC 179

R v St CLAIR
[2000] SASC 179

Court of Criminal Appeal: Duggan, Mullighan and Gray JJ

DUGGAN J In my view the appeal should be allowed but only for the limited purpose indicated by Mullighan J. I agree with his reasons.
MULLIGHAN J This is an appeal against sentence.
The appellant pleaded guilty to two counts of burglary and one count of larceny. He was sentenced to imprisonment for a total period of 11 years and 6 months which had to be served at the end of an unexpired sentence of 1 year 10 months and 2 days making a total head sentence of 13 years, 4 months and 2 days. Allowance was made for the period the appellant had been in custody of 1 year and 2 days in fixing a non-parole period of 7 seven years and 6 months.
The sole ground of appeal is that the total head sentence and the non-parole period are manifestly excessive.
The offences of burglary are undoubtedly serious breaches of the law. The first offence was committed at about 2.00 am on 23rd January 1999. The appellant broke into the residence of a Mrs Gillard by smashing the glass panel of the front door. She was woken having heard the door being broken. She confronted the appellant in the passage and attempted to get him out of the house. Her three young children saw this incident and were greatly distressed. They were aged 8, 6 and 2 years. The appellant asked Mrs Gillard for her purse. She gave him $80 from her purse and he then left. The second offence of burglary was committed at about 3.45 am on 25th January 1999. The appellant gained entry into the house of a Mrs Richards through the back door. She opened the door thinking her son was trying to enter. The appellant forced his way in. He put his hand over her mouth to stop her from screaming. She asked him to leave her alone and not to harm her. He forced her to the ground. She sustained a cut to the back of her head as a result of the fall. Her 11 year old son and 14 year old daughter came out of their respective bedrooms and saw this part of the incident. The appellant left without obtaining any money or property.
He was arrested and charged on 9th February 1999. He refused to answer questions or to participate in an identification parade. He has been in custody since the arrest. He first appeared in the District Court on 5th July 1999 and entered pleas of not guilty. The matter came to trial on 1st November 1999. There was a voir dire hearing in relation to the cross admissibility of evidence with respect to the two charges and, it appears, the charge of larceny which is mentioned shortly [P132]. Following adverse rulings, the appellant pleaded guilty to the two charges of burglary.
Outstanding charges of larceny and failure to comply with a…

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 St Clair No. Sccrm-00-38

Details

AGLC: R v St Clair No. Sccrm-00-38 [2000] SASC 179
Case: [2000] SASC 179
Decision Date: 27 June 2000

CaseChat Overview and Summary

The Court of Criminal Appeal considered an appeal against sentence in the case of R v St Clair. The appellant pleaded guilty to two counts of burglary and one count of larceny. The court was required to decide whether the total head sentence and the non-parole period were manifestly excessive. The court found that the total head sentence should be reduced by one year and two days due to the appellant's time spent in custody, but the non-parole period remained appropriate. The court allowed the appeal for the limited purpose of reducing the head sentence.

The appellant committed two counts of burglary and one count of larceny, resulting in a total head sentence of 11 years and 6 months to be served cumulatively. The non-parole period was set at 7 years and 6 months, accounting for the time the appellant had already spent in custody. The appellant argued that the total head sentence and the non-parole period were manifestly excessive. The court found that the learned sentencing judge erred in not ordering that the head sentence be reduced to give effect to the period the appellant had spent in custody. However, the non-parole period was deemed appropriate. The court allowed the appeal for the limited purpose of reducing the head sentence by one year and two days, resulting in a total head sentence of 12 years and 4 months.

Orders