R v Thustain No. Sccrm-03-294

[2004] SASC 50

R v THUSTAIN
[2004] SASC 50

Court of Criminal Appeal:       Doyle CJ, Perry and Mullighan JJ

1. DOYLE CJ:          In my opinion the Judge’s starting point was significantly too high for this offence.  However, I must say it is a serious offence. Nevertheless, having regard to the various steps the Judge went through, it is also my view that the end result cannot be said to be manifestly excessive or indeed excessive at all. However, because the Judge imposed the sentence technically in the wrong manner it is necessary for us to interfere.

2. The appellant, having committed an offence while on parole, was obliged to serve the balance of unexpired parole to which had to be added the appropriate sentence for this offence. But what the Judge did was to combine both sentences into a single sentence and that is something that is not permissible under the legislation. Accordingly, as I said, it is necessary to interfere, although the end result does not lead to any difference of substance.

3. On the offence before the District Court I would start with a sentence of four years imprisonment, which I would reduce to three years for the plea of guilty. I would then reduce that by a further one year five months to allow for time in custody but round the end result down to one year six months.  Therefore, I would impose a sentence of one year six months for the offence before the District Court.

4. To that is to be added the unexpired sentence of six years, 24 days. That means that the total sentence to be served by the appellant under the two sentences is seven years, six months, 24 days as will be seen as just a fraction less than the total that the Judge imposed but they are now two separate sentences.

5. In relation to the total of the sentences combined, I would fix a non-parole period of four years and seven months, which again has already been subject to the same reduction that the Judge made of one year five months to allow for the time in custody.  I would allow the appeal for the purpose of varying the sentence in that manner.

6. PERRY J:             I agree.

7. MULLIGHAN J:  I agree.