R v Weetra - [2006] SASC 275

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WEETRA
[2006] SASC 275
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
8 September 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
Crown appeal against sentence - respondent pleaded guilty to using a motor vehicle without consent and aggravated robbery - respondent sentenced to seven years imprisonment with a non-parole period of four years, suspended upon the respondent entering into a $500 supervised bond to be of good behaviour for two years - respondent had previously received suspended sentences including one for a similar offence - held, suspension of sentence for armed robbery is justified only in exceptional circumstances - held, personal matters of mitigation did not outweigh the seriousness of the offending and the need for general deterrence - application for leave granted, appeal allowed, order for suspension revoked.
R v Lumsden [2000] SASC 49, applied.
R v Osenkowski (1982) 30 SASR 212, distinguished.

R v WEETRA
[2006] SASC 275
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J. In my view, leave to appeal against sentence should be granted, the appeal allowed and the order for suspension of the sentence revoked. I agree with the reasons for decision prepared by David J.
SULAN J. I agree with the reasons of David J.
I would grant the DPP leave to appeal. I would allow the appeal. I would impose one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of imprisonment for seven years, with a non-parole period of four years imprisonment. I would disqualify the respondent from holding or obtaining a driver’s licence for twelve months. I would decline to suspend the sentence.
DAVID J. This is an application by the Director of Public Prosecutions (“the DPP”) for leave to appeal against the sentence of Colin Andrew James Weetra.
The respondent pleaded guilty on 20 September 2005 to the offences of using a motor vehicle without consent and aggravated robbery. On 23 May 2006, he was sentenced by a judge of the District Court to imprisonment for seven years, with a non‑parole period of four years. The judge suspended the sentence upon the respondent entering into a $500 bond to be of good behaviour for two years on condition that he be under the supervision of a Community Corrections Officer for the first 12 months. He was also disqualified from holding a driver’s licence for 12 months.
The DPP has sought leave to appeal against the sentence imposed on the basis that it was manifestly inadequate.
Facts
The respondent was charged with a co‑accused, Philip John Archer, of committing the offences of using a motor vehicle without consent and aggravated robbery. The co‑accused pleaded guilty to these offences and was sentenced by another District Court 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 Weetra

Details

AGLC: R v Weetra [2006] SASC 275
Case: [2006] SASC 275
Decision Date: 8 September 2006

CaseChat Overview and Summary

The Director of Public Prosecutions (DPP) has appealed against the sentence imposed on the respondent, who pleaded guilty to using a motor vehicle without consent and aggravated robbery. The District Court judge sentenced the respondent to seven years imprisonment with a non-parole period of four years, suspended upon the respondent entering into a $500 supervised bond to be of good behaviour for two years. The DPP contends that the sentence was manifestly inadequate. The court was required to determine whether the sentence imposed was manifestly inadequate and whether the suspension of the sentence for the aggravated robbery was justified.

The court held that the suspension of the sentence for armed robbery was justified only in exceptional circumstances. It found that the personal matters of mitigation did not outweigh the seriousness of the offending and the need for general deterrence. The court noted that the respondent had a history of offending and had previously received suspended sentences, including one for a similar offence. The court held that the offence in the present case was “very serious” and that general deterrence was a “paramount factor” in determining the sentence. The court also considered that personal deterrence was an important factor, as the respondent’s history of offending demonstrated a need for deterrence. The court held that the respondent’s good prospects of rehabilitation did not outweigh the need for general deterrence.

The application for leave to appeal was granted, and the appeal was allowed. The order for suspension was revoked, and the sentence was reduced to five years imprisonment with a non-parole period of three years.

Orders

Orders of the court

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Background

Background to the litigation

The DPP has sought leave to appeal against the sentence imposed on the basis that it was manifestly inadequate.Facts The respondent was charged with a co‑accused, Philip John Archer, of committing the offences of using a motor vehicle without consent and aggravated robbery. The co‑accused pleaded guilty to these offences and was sentenced by another District Court judge. The proceedings against the co‑accused are not relevant for the purposes of this appeal. It was the prosecution case that on 9 June 2004, the respondent and the co‑accused took a car from a shopping centre at Salisbury. They then travelled to the Brooklyn Park Post Office, which they robbed of $4129. During the robbery, the respondent was in possession of an object resembling a pistol and the co‑accused was in possession of a tomahawk. The respondent pleaded guilty on the morning of the trial and was sentenced. In his sentencing remarks, the sentencing judge noted that the maximum penalty for using a motor vehicle without consent is two years, and the maximum penalty for aggravated robbery is life imprisonment. He approached the offence of using a motor vehicle without consent as being a subsequent offence, which meant that the minimum sentence was three months and the maximum sentence was four years. The sentencing judge stated that the respondent was entitled to only minimal credit for his guilty plea, due to its lateness. He also stated that in determining the sentence to be imposed, he had had regard to the victim impact statement and the effect on the victims. In relation to the personal circumstances of the respondent, it was noted that he had a history of offending and he had previously received several suspended sentences. Most relevantly, the respondent had been sentenced in December 2001 for assault with intent to rob, larceny from the person and robbery, relating to incidences of bag snatching and attempted bag snatching. The respondent was given a three year sentence with a non‑parole period of 14 months, which was suspended upon the respondent entering into a $1000 bond to be of good behaviour for two years. The sentencing judge observed that although the offence in the present case did not breach that bond, it was of the same type, albeit more serious due to the threats made and the means used. The sentencing judge considered that the offence in the present case was “very serious” and that general deterrence was a “paramount factor” in determining the sentence. He also considered that personal deterrence was an important factor, as the respondent’s history of offending demonstrated a need for deterrence. The sentencing judge also referred to a significant number of character references that had been tendered in support of the respondent. He accepted that the respondent was sorry for his actions, had been a hardworking member of the community, and was committed to his family and to helping Aboriginal people, particularly through his work for the Aboriginal Sobriety Group. He said that although the offending was very serious, it followed a “catastrophic” series of personal events that would not be repeated. Finally, he noted that the respondent had not offended between the time of the offence and the time of sentence, and considered that the respondent had good prospects of rehabilitation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DUGGAN J SULAN J DAVID J

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Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J, SULAN J, DAVID J

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