R v Taylor

Case [2016] SASCFC 54

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TAYLOR

[2016] SASCFC 54

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)

19 May 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

The appellant was sentenced for offences of aggravated serious criminal trespass in a place of residence and theft. The offending breached a three month suspended sentence bond. Prior to sentence, the appellant had spent two months and five days in custody and three years and six months on home detention bail. The Judge allowed a total credit of three months. A final sentence of four years imprisonment was imposed with a 20 month non-parole period.

Whether the Judge failed to give appropriate and adequate weight for time spent on home detention bail - whether the final sentence was manifestly excessive.

Held per Lovell J (Nicholson and Parker JJ agreeing) (allowing the appeal):

1.    In the circumstances of this case, the Judge was required to give far more weight than he did to the time spent on home detention bail.

2.    The amount of credit allowed for time on home detention bail has led to a sentence which is manifestly excessive.

3.    The original sentence is set aside. The appellant is to be resentenced. 

Criminal Law Consolidation Act 1935 (SA) s 269; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
House v The King (1936) 55 CLR 499; R v Horstmann [2010] SASC 103, applied.
R v Nguyen [2004] SASC 405; R v Malesevic [1999] SASC 321; Allen v R [1999] SASC 346, discussed.
R v Franceschini [2015] SASCFC 116; R v Lutze [2014] SASCFC 134, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"manifestly excessive"

R v TAYLOR
[2016] SASCFC 54

Court of Criminal Appeal:       Nicholson, Parker and Lovell JJ

  1. NICHOLSON J:   I agree with the orders proposed by Lovell J for the reasons he has given.

  2. PARKER J:          I would uphold the appeal. I agree with the reasons of Lovell J and the orders he proposes.

    LOVELL J.

  3. This appeal raises the issue of a sentencing judge’s discretion to allow a deduction from a sentence for time spent on home detention bail. At the time of sentencing the appellant had spent approximately three and a half years on home detention bail. The sentencing Judge allowed 25 days credit for the time on home detention bail.

  4. The appellant complains that the sentence and non-parole period are manifestly excessive as the Judge failed to give appropriate and adequate weight for time spent on home detention bail.

    Background

  5. The appellant was sentenced following a trial in the Supreme Court for offences of aggravated serious criminal trespass in a place of residence and theft. Along with three others, the appellant broke into the victim’s home in the early hours of 14 March 2012 in order to steal cannabis.…

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R v Taylor [2016] SASCFC 54
Case
[2016] SASCFC 54
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the appellant, R v Taylor, against the sentence imposed by the sentencing judge. The appellant had been convicted of certain offences and received an overall sentence of four years imprisonment with a non-parole period of 20 months. The appeal was heard by Nicholson, Parker, and Lovell JJ.

The central legal issue before the appellate court was whether the sentencing judge had erred in imposing the sentence, particularly in light of the appellant's background and psychological condition. The court was required to consider the appellant's deprived upbringing, including his mother's suicide, his parents' separation, periods of homelessness, difficulties at school, and his struggles with alcohol, cannabis, and methamphetamine. Furthermore, the court had to assess the relevance of the appellant's mild intellectual disability, social anxiety disorder, low verbal IQ, and reading age of an eight-year-old, as reported by a psychologist, to the sentencing determination. The appellant's subsequent period on home detention bail, during which he moved away from his previous peer group and committed no further offences, was also a factor to be considered.

The appellate court considered the sentencing judge's remarks and the evidence presented regarding the appellant's personal circumstances. The court acknowledged the appellant's difficult background and psychological vulnerabilities. However, the court found that the sentencing judge had properly taken these factors into account when imposing the sentence. The court noted that the appellant's absconding from home detention bail after the guilty verdict was a matter that the sentencing judge correctly disregarded when imposing the initial sentence. The appellate court ultimately upheld the sentence imposed by the sentencing judge.

Orders

Orders of the court

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Background

Background to the litigation

Any confusion about the structure of the sentence was resolved by the Report of Prisoner Tried where it is clear that his Honour imposed an overall sentence of four years imprisonment commencing on 29 January 2016 with a non-parole period of 20 months commencing on the same date.Background of the Appellant By way of background the appellant was brought up in deprived circumstances. He has a good relationship with his father who clearly did his best in difficult circumstances. His mother committed suicide when he was 16 years of age. Prior to the offending the subject of this appeal the appellant had never had paid employment. The appellant is currently 24 years old. His father is Greek and his mother Aboriginal. His mother always had a severe problem with alcohol and after his parents separated he stayed with his father. The appellant told Mr Broomhall, a psychologist, that his mother was frequently drunk, seemed very depressed, and he found it very difficult to spend time with her when she was intoxicated. The appellant said his mother had a lot of family issues including suicide, depression, alcohol and substance abuse. The appellant had a good relationship with his father but they did not always have a house in which to live. The two of them lived out of a car for approximately seven years. He had trouble at school and developed problems with alcohol and cannabis. He also developed a problem with methamphetamine. The only work the appellant had done prior to sentencing was six months with “BoysTown”, refurbishing SA Housing Trust houses whilst on home detention. I note that whilst under home detention the appellant had moved out of the area where he was living at the time of the offending and did not associate with his previous peer group. Further, he had not committed any offences for the time he was on home detention bail. The sentencing Judge had before him two reports from a psychologist, Mr Broomhall. Mr Broomhall had been asked to assess him and comment on whether the appellant was mentally fit to stand trial and also whether at the time of the offending he was mentally competent to commit the offences. Relevant to the sentencing proceedings Mr Broomhall was of the opinion that the appellant suffered a mild intellectual disability as well as a social anxiety disorder. He had a reading age equivalent to an eight year old and a verbal IQ in the extremely low range of somewhere between 59 and 70; these findings were consistent with the appellant’s difficulties at school. The appellant is currently in a stable relationship and has been so for approximately six years. He has three children aged four, three and one, one of whom has severe learning difficulties. Prior to trial the appellant spent approximately three years and six months on home detention bail. After the jury returned the guilty verdict on 26 November 2015 the sentencing Judge continued the appellant’s bail. The appellant became so worried about incarceration that he cut-off his home detention bracelet and absconded. A warrant was issued for his arrest on 10 December 2015 and he was arrested on 16 December 2015. He remained in custody for a period of 44 days until he was sentenced on 29 January 2016. The sentencing Judge correctly had no regard to that matter when imposing sentence.Sentencing Judge’s remarks

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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