R v Venn - [2013] SASCFC 131

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v VENN
[2013] SASCFC 131
Reasons for Rulings of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
2 December 2013
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - WITHDRAWAL AND RESTORATION OF PLEA - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - PARTICULAR CASES
These are applications for permission to appeal against conviction and sentence. The defendant pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence and theft. By reason of these offences, the defendant breached a suspended sentence bond imposed for an earlier offence of theft. The Judge revoked the suspended sentence of two months and sentenced the defendant to a term of imprisonment of three years in respect of the offence of aggravated serious criminal trespass and to a term of imprisonment of eight months in respect of the offence of theft, with a non-parole period of three years.
The matter of aggravation for the offence of aggravated serious criminal trespass in a place of residence was the presence of the occupier who was aged over 60 years at the residence at the time of the offence. During sentencing submissions, defence counsel submitted that the defendant had seen a motor vehicle drive away from the property and when he broke into the residence he believed that no one was at home.
Counsel for the defendant deposed in an affidavit filed in support of the defendant’s application that the conviction of the offence of aggravated serious criminal trespass in a place of residence be set aside that he did not notice that the aggravating features alleged went to the age of the victim, that he did not advise the defendant as to the aggravating features and that, had he done so, he ought to have advised the defendant to plead not guilty as charged but guilty to serious criminal trespass. Counsel for the Director of Public Prosecutions did not oppose the appeal against conviction on the count of aggravated serious criminal trespass in a place of residence being allowed.
Held (allowing the appeal) per Gray J (at [15]) (Kourakis CJ and Peek J agreeing):
(1)     Appeal against conviction on the charge of aggravated serious criminal trespass in a place of residence allowed.
(2)     Defendant granted leave to withdraw his plea of guilty to the charge of aggravated serious criminal trespass in a place of residence.
(3)     Sentence imposed on the charge of aggravated serious criminal trespass in a place of residence set aside.
(4)     The charge of aggravated serious criminal trespass in a place of residence remitted to the District Court for rehearing.
(5)     Sentence imposed for the offence of theft set aside.
(6)     Sentencing of the defendant in respect of the offence of theft remitted to the District Court to be dealt with by the Judge…

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 Venn

Details

AGLC: R v Venn [2013] SASCFC 131
Case: [2013] SASCFC 131
Decision Date: 2 December 2013

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Gray and Peek JJ, considered an appeal against a conviction recorded on a guilty plea. The dispute concerned the defendant's plea of guilty to aggravated serious criminal trespass in a place of residence and the subsequent sentence imposed, as well as a related offence of theft and a breach of a suspended sentence bond.

The central legal issue before the Court was whether the defendant should be granted leave to withdraw his plea of guilty to the charge of aggravated serious criminal trespass in a place of residence. This also necessitated a determination of the appropriate course for the sentence imposed for that offence, the sentence for the offence of theft, and the revocation of a suspended sentence bond.

The Court allowed the appeal, holding that the defendant should be granted leave to withdraw his plea of guilty. The reasoning, as articulated by Gray J, focused on the circumstances surrounding the plea and the interconnectedness of the offences and the suspended sentence. The Court set aside the sentence for aggravated serious criminal trespass and remitted the charge for a rehearing. Similarly, the sentence for theft was set aside and remitted for resentencing in conjunction with the rehearing of the trespass charge. The order revoking the suspended sentence bond was also set aside and remitted for reconsideration by the presiding judge at the rehearing. The defendant was remanded in custody pending these resolutions.

Orders

Orders of the court

Held (allowing the appeal) per Gray J (at [15]) (Kourakis CJ and Peek J agreeing):

(1) Appeal against conviction on the charge of aggravated serious criminal trespass in a place of residence allowed.

(2) Defendant granted leave to withdraw his plea of guilty to the charge of aggravated serious criminal trespass in a place of residence.

(3) Sentence imposed on the charge of aggravated serious criminal trespass in a place of residence set aside.

(4) The charge of aggravated serious criminal trespass in a place of residence remitted to the District Court for rehearing.

(5) Sentence imposed for the offence of theft set aside.

(6) Sentencing of the defendant in respect of the offence of theft remitted to the District Court to be dealt with by the Judge presiding over the rehearing of the charge of aggravated serious criminal trespass in a place of residence.

(7) Order revoking the suspended sentence bond entered into on 28 March 2012 set aside.

(8) Consideration of the Director’s application that the suspended sentence bond be revoked remitted to the District Court to be dealt with by the Judge presiding over the rehearing of the charge of aggravated serious criminal trespass in a place of residence.

(9) Defendant remanded in custody pending the resolution of the above matters having regard to his acceptance of each of the elements of the offence of serious criminal trespass in a place of residence, to his conviction of the offence of theft and to his acknowledgement of the breach of his suspended sentence bond.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KOURAKIS CJ PEEK J

Although the sentencing Judge imposed a separate sentence in respect of the offence of theft, as this formed part of the one course of conduct, it is appropriate that this sentence be set aside and the matter remitted to the District Court for the defendant to be resentenced once the offence of aggravated serious criminal trespass in a place of residence has been resolved. Similarly, at that time, the Court can determine the appropriate course to be taken in regard to the defendant’s breach of his suspended sentence bond. Conclusion In the above circumstances, the Court, on 18 November 2013, ordered: 1.That the appeal against conviction on the charge of aggravated serious criminal trespass in a place of residence is allowed.2.That the defendant is granted leave to withdraw his plea of guilty to the charge of aggravated serious criminal trespass in a place of residence.3.That the sentence imposed on the charge of aggravated serious criminal trespass in a place of residence is set aside.4.That the charge of aggravated serious criminal trespass in a place of residence is remitted to the District Court for rehearing.5.That the sentence imposed for the offence of theft is set aside.6.That the sentencing of the defendant in respect of the offence of theft is remitted to the District Court to be dealt with by the Judge presiding over the rehearing of the charge of aggravated serious criminal trespass in a place of residence.7.That the order revoking the suspended sentence bond entered into on 28 March 2012 is set aside.8.That consideration of the Director’s application that the suspended sentence bond be revoked is remitted to the District Court to be dealt with by the Judge presiding over the rehearing of the charge of aggravated serious criminal trespass in a place of residence.9.That the defendant be remanded in custody pending the resolution of the above matters having regard to his acceptance of each of the elements of the offence of serious criminal trespass in a place of residence, to his conviction of the offence of theft and to his acknowledgement of the breach of his suspended sentence bond. I agree with the reasons of Gray J for the orders made by the Court on 18 November 2013.

Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ, PEEK J

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