(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)
18 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeal against sentence – appellant pleaded guilty to six counts aggravated serious criminal trespass, seven counts serious criminal trespass, ten counts theft and two counts attempted serious criminal trespass – sentenced in respect of all offending by Judge of District Court to six years imprisonment with a non-parole period of two years and three months – whether, particularly having regard to the appellant’s youth and prior unblemished record, the sentence imposed was manifestly excessive – discussion of sentencing process when sentencing for multiple offences – whether good reason exists to suspend the sentence – Held: by the Court - appeal allowed– sentence imposed by District Court Judge set aside – by majority - appellant sentenced to imprisonment for four years and six months with a non-parole period of 20 months – sentence not suspended.
[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 Van der Horst [2006] SASC 243
Case
[2006] SASC 243
Decision Date
CaseChat Overview and Summary
The appeal in this case was brought by the appellant, who was convicted of multiple offences including aggravated serious criminal trespass, serious criminal trespass, theft, and attempted serious criminal trespass. The appellant was sentenced by a District Court Judge to six years imprisonment with a non-parole period of two years and three months. The appeal focused on the grounds that the sentence imposed was manifestly excessive, particularly considering the appellant's youth and prior unblemished record, and that the Judge had erred in not suspending the sentence. The court had to determine whether the sentence was indeed excessively harsh and whether there was sufficient reason to suspend the sentence.
The court reviewed the principles of sentencing for multiple offences, emphasizing the need for a global approach rather than treating each offence as separate. The court also considered the appellant's youth, lack of a prior criminal record, and the nature of the offending, which spanned several months but involved mostly petty thefts and minor property damage. The court scrutinized the sentence against the legislative maxima and the precedents set by similar cases, particularly noting the increase in penalties for these types of offences.
After thorough deliberation, the court allowed the appeal and set aside the original sentence. The majority of the court sentenced the appellant to four years and six months imprisonment with a non-parole period of 20 months. The court decided against suspending the sentence, reasoning that while the appellant’s youth and lack of a prior criminal record were mitigating factors, they did not sufficiently outweigh the seriousness and frequency of the offences committed. The court held that the original sentence was excessive and did not adequately reflect the proportionality and deterrence principles in sentencing.
Orders
Orders of the court
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Background
Background to the litigation
This is an application for leave to appeal against a sentence imposed in the District Court for 25 offences, being mostly serious criminal trespass offences and some associated thefts. The Judge imposed a single sentence of six years imprisonment with a non-parole period of two years and three months, unsuspended. The proposed grounds of the appeal are that the sentence is manifestly excessive and that the Judge erred in declining to suspend it. Background The offences occurred over a period of nine weeks in the Millicent township. The premises targeted were business premises. When the offending commenced the applicant was 20 years of age. The offences were committed in company with a youth, who was then aged 15 years. In respect of some of the offences both offenders entered the subject premises and in respect of other offences, one or the other entered. It appears that on the basis of that distinction only some of the offences were charged as aggravated serious criminal trespass. The offences comprised six counts of aggravated serious criminal trespass (maximum 20 years imprisonment), seven counts of serious criminal trespass (maximum 10 years imprisonment), ten counts of theft (maximum 10 years imprisonment), and two counts of attempted serious criminal trespass (maximum six years and eight months imprisonment). All were committed in the night. In respect of the counts of theft the value of the property stolen ranged from about $20 to about $3,500. However, in most cases the value of goods taken was minimal. Damage to the premises in effecting entry does not seem to have been separately charged. Overall, there were 15 premises targeted on nine separate occasions. Prior to embarking on this course of offending, the applicant was of good character. He was unemployed during the offending, but by the time of submissions on sentence had obtained full time employment. He was boarding with a woman of about 44 years who had two teenage children at home. The applicant pleaded guilty before the Magistrate. It was put to the Judge in submissions that the applicant was unable to explain coherently why he embarked on this course of conduct, except that he was in need of money. It was put that he got “caught up in the excitement” of it. There was no question of involvement with drugs. The information given to the sentencing judge about the applicant was somewhat deficient. Nonetheless, the Judge found that it was unlikely that the appellant would offend again.Analysis In R v Delphin (2001) 79 SASR 429, this Court noted the then recent changes to the legislative scheme for what were formerly referred to as “breaking offences” and discussed the impact which those changes and the new and higher penalty maxima might have on the range of penalties imposed for such offences. The Court referred to the old tariffs set by R v Halse (1985) 38 SASR 594 under which the penalty imposed in the Magistrates Court for a first offender committing a single shop breaking and larceny offence would have usually been nine to twelve months imprisonment. The Court noted that the maximum penalty for what was previously referred to as a “shop breaking and larceny” had gone from eight years imprisonment to ten years imprisonment for each of the serious criminal trespass and the theft offences into which the old offence was now divided. Dealing with a serious criminal trespass in a place of residence (maximum 15 years) the Court said it now was to be expected that a first offence, after a plea of guilty, would attract a sentence of the order of 20 to 24 months imprisonment.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The sentence of three years imprisonment should be suspended upon the applicant’s entry into a bond to be of good behaviour. Conclusion I would grant leave to appeal against the sentence. I would allow the appeal and set aside the sentence imposed by the District Court. I would sentence the applicant to imprisonment for three years with a non-parole period of twelve months. I would suspend the sentence.VANSTONE J:Introduction This is an application for leave to appeal against a sentence imposed in the District Court for 25 offences, being mostly serious criminal trespass offences and some associated thefts. The Judge imposed a single sentence of six years imprisonment with a non-parole period of two years and three months, unsuspended. The proposed grounds of the appeal are that the sentence is manifestly excessive and that the Judge erred in declining to suspend it. Background The offences occurred over a period of nine weeks in the Millicent township. The premises targeted were business premises. When the offending commenced the applicant was 20 years of age. The offences were committed in company with a youth, who was then aged 15 years. In respect of some of the offences both offenders entered the subject premises and in respect of other offences, one or the other entered. It appears that on the basis of that distinction only some of the offences were charged as aggravated serious criminal trespass. The offences comprised six counts of aggravated serious criminal trespass (maximum 20 years imprisonment), seven counts of serious criminal trespass (maximum 10 years imprisonment), ten counts of theft (maximum 10 years imprisonment), and two counts of attempted serious criminal trespass (maximum six years and eight months imprisonment). All were committed in the night. In respect of the counts of theft the value of the property stolen ranged from about $20 to about $3,500. However, in most cases the value of goods taken was minimal. Damage to the premises in effecting entry does not seem to have been separately charged. Overall, there were 15 premises targeted on nine separate occasions. Prior to embarking on this course of offending, the applicant was of good character. He was unemployed during the offending, but by the time of submissions on sentence had obtained full time employment. He was boarding with a woman of about 44 years who had two teenage children at home. The applicant pleaded guilty before the Magistrate. It was put to the Judge in submissions that the applicant was unable to explain coherently why he embarked on this course of conduct, except that he was in need of money. It was put that he got “caught up in the excitement” of it. There was no question of involvement with drugs. The information given to the sentencing judge about the applicant was somewhat deficient. Nonetheless, the Judge found that it was unlikely that the appellant would offend again.Analysis In R v Delphin (2001) 79 SASR 429, this Court noted the then recent changes to the legislative scheme for what were formerly referred to as “breaking offences” and discussed the impact which those changes and the new and higher penalty maxima might have on the range of penalties imposed for such offences.