R v THUSTAIN
[2004] SASC 50Court of Criminal Appeal: Doyle CJ, Perry and Mullighan JJ
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.
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.
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.
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.
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.
PERRY J: I agree.
MULLIGHAN J: I agree.
- AGLC
- R v Thustain No. Sccrm-03-294 [2004] SASC 50
- Case
- [2004] SASC 50
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Criminal Appeal was whether the District Court Judge correctly combined the sentences for the new offence and the unexpired parole term into a single sentence, and if the total sentence imposed was appropriate. The Court considered whether the Judge's starting point for sentencing was too high and if the final sentence was manifestly excessive or permissible under the relevant legislation.
The Court found that although the Judge's starting point was significantly high, the end result was not excessive. However, the Court determined that the Judge had technically imposed the sentence in the wrong manner by combining the two sentences into one. This was not permissible under the applicable legislation. Consequently, the Court found it necessary to interfere with the sentence. The Court proceeded to impose separate sentences for the new offence and the unexpired parole term, resulting in a total sentence that was slightly less than the original imposed sentence but correctly structured according to the law.
The Court of Criminal Appeal allowed the appeal to vary the sentence, imposing a sentence of one year and six months for the new offence and adding the unexpired parole term of six years and 24 days. The Court fixed a non-parole period of four years and seven months, adjusted for time already served. This resulted in a total sentence of seven years, six months, and 24 days, which the Court deemed appropriate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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