CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
Application by the South Australian Director of Public Prosecutions for permission to appeal against sentence.
The respondent pleaded guilty to two counts of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act (SA), after robbing an On the Run service station and an IGA. The circumstances of aggravation were that the respondent threatened to use an offensive weapon when committing the offences.
The respondent had no criminal history. His personal circumstances invited sympathy. The sentencing judge imposed a single sentence for the two offences. She identified a starting point of four years’ imprisonment. She reduced that by 30 per cent on account of the respondent’s guilty pleas to two years, nine months and 19 days. She further reduced that for time spent in custody and on home detention bail. This resulted in a sentence of two years, eight months and two days. The judge fixed a non-parole period of 14 months.
The primary issue on appeal was whether the head sentence and non-parole period imposed are manifestly inadequate.
Held (by the Court), granting permission to appeal and allowing the appeal:
1. Having regard to the respondent’s personal circumstances and the fact that the robberies could be described as being at the lower end of seriousness, a combined total starting point of four years is still manifestly inadequate.
2. The sentence is set aside.
3. A starting point of five years' imprisonment is fixed in respect of each offence. A total combined head sentence of four years, one month and 13 days is imposed, after substantial concurrency, guilty plea discounts and reductions for time spent in custody and on home detention bail. The sentence is to operate from 14 July 2020. A non-parole period of two years and two months is imposed.
Court of Appeal – Criminal: Kelly P, Doyle and Bleby JJA
THE COURT: This is an application by the Director of Public Prosecutions for permission to appeal against sentence.
The primary issue arising is whether a head sentence and non-parole period imposed for two counts of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’),…
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 Thompson [2021] SASCA 40
Case
[2021] SASCA 40
Decision Date
CaseChat Overview and Summary
The Crown appealed against the sentence imposed on the respondent, R v Thompson, in the Supreme Court of Victoria. The dispute concerned the adequacy of the sentence for multiple counts of robbery.
The Court was required to determine whether the original sentence was manifestly inadequate, given the nature of the offences and the respondent's personal circumstances.
The Court reasoned that while the respondent's personal circumstances and the relatively low seriousness of the robberies were factors to be considered, the initial combined starting point of four years' imprisonment was still insufficient. The Court set aside the original sentence and imposed a new starting point of five years' imprisonment for each offence. After applying discounts for a guilty plea, time spent in custody, and home detention bail, a total head sentence of four years, one month, and thirteen days was imposed, commencing from 14 July 2020. A non-parole period of two years and two months was also fixed.
Orders
Orders of the court
Held (by the Court), granting permission to appeal and allowing the appeal:
1. Having regard to the respondent’s personal circumstances and the fact that the robberies could be described as being at the lower end of seriousness, a combined total starting point of four years is still manifestly inadequate.
2. The sentence is set aside.
3. A starting point of five years' imprisonment is fixed in respect of each offence. A total combined head sentence of four years, one month and 13 days is imposed, after substantial concurrency, guilty plea discounts and reductions for time spent in custody and on home detention bail. The sentence is to operate from 14 July 2020. A non-parole period of two years and two months is imposed.