R v TILMOUTH - [2013] SASCFC 107

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TILMOUTH
[2013] SASCFC 107
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Peek)
18 October 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - PREMEDITATION AND METHOD OF EXECUTION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
The appellant pleaded guilty to one count of attempted murder. He had stabbed and cut the victim’s throat while the victim was handcuffed, gagged and blindfolded during a sexual bondage session prearranged between the appellant and the victim. The appellant was 19 years of age at the time of offending. The sentencing Judge imposed a sentence of 10 years with a non-parole period of 7 years. The appellant appeals on the grounds that the sentence and the non-parole period are manifestly excessive.
Held by Kelly J (Kourakis CJ and Peek J agreeing):
1. Given the inherent seriousness of the crime, the starting point of 14 years adopted by the sentencing Judge was within the range available to him (at [19]).
2. The sentencing remarks do not indicate that the Judge erred in his approach to the fixing of a head sentence. The sentencing Judge appropriately considered the appellant’s personal circumstances, including his youth at the time of offending (at [22]).
3. The discount of approximately 28 per cent for a guilty plea on the morning of trial was generous (at [21]).
4. While the non-parole period is a relatively high proportion of the head sentence, it was appropriate given the circumstances of offending (at [30]).
5. Appeal dismissed.
Statutes Amendment (Truth in Sentencing) Act 1994 (SA), referred to.
Munda v State of Western Australia [2013] HCA 38, considered.

R v TILMOUTH
[2013] SASCFC 107
Court of Criminal Appeal: Kourakis CJ, Kelly and Peek JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Kelly J.
KELLY J:
This is an appeal against a sentence imposed in the Supreme Court on 21 June 2013.
The appellant pleaded guilty to one count of attempted murder committed on 19 March 2012. The appellant was 19 years old at the date of the offence, 20 years old by the time he was sentenced.
The sentencing Judge imposed a sentence of 10 years with a non-parole period of seven years.
The appellant appeals on the grounds that the sentence and the non-parole period are both manifestly excessive. Further specific complaints made are that the Judge inappropriately adopted a two tiered approach to the setting of the head sentence and that…

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 TILMOUTH

Details

AGLC: R v TILMOUTH [2013] SASCFC 107
Case: [2013] SASCFC 107
Decision Date: 18 October 2013

CaseChat Overview and Summary

The appeal in *R v Tilmouth* concerned the sentence imposed on the appellant, who had pleaded guilty to attempted murder. The victim had been subjected to a sexual bondage session, during which the appellant stabbed and cut the victim's throat. At the time of the offence, the appellant was 19 years old. The sentencing judge had imposed a head sentence of 10 years imprisonment with a non-parole period of 7 years. The appellant argued that both the head sentence and the non-parole period were manifestly excessive.

The Full Court of the Supreme Court of South Australia was required to determine whether the sentencing judge had erred in imposing the sentence and non-parole period, considering the gravity of the offence, the appellant's youth, and his guilty plea. Specifically, the court had to assess if the starting point for the sentence was appropriate, if the sentencing judge had adequately considered the appellant's personal circumstances, and if the discount for the guilty plea and the proportion of the non-parole period to the head sentence were justifiable.

The court found that the sentencing judge's starting point of 14 years for the head sentence was within the available range, given the inherent seriousness of the attempted murder. The court held that the sentencing remarks demonstrated that the judge had appropriately considered the appellant's personal circumstances, including his youth at the time of the offence. Furthermore, the court considered the discount of approximately 28 per cent for the guilty plea, entered on the morning of the trial, to be generous. While acknowledging that the non-parole period represented a relatively high proportion of the head sentence, the court concluded that it was appropriate in light of the circumstances of the offending. Consequently, the appeal was dismissed.

Orders

Orders of the court

Held by Kelly J (Kourakis CJ and Peek J agreeing):

1. Given the inherent seriousness of the crime, the starting point of 14 years adopted by the sentencing Judge was within the range available to him (at [19]).

2. The sentencing remarks do not indicate that the Judge erred in his approach to the fixing of a head sentence. The sentencing Judge appropriately considered the appellant’s personal circumstances, including his youth at the time of offending (at [22]).

3. The discount of approximately 28 per cent for a guilty plea on the morning of trial was generous (at [21]).

4. While the non-parole period is a relatively high proportion of the head sentence, it was appropriate given the circumstances of offending (at [30]).

5. Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PEEK J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.