R v Wells No. Sccrm-99-57 Judgment No. S196 - [1999] SASC 196

R v WELLS

[1999] SASC 196

Court of Criminal Appeal: Olsson, Duggan and Mullighan JJ (extempore)

1 OLSSON J: We have reached a decision in this matter and I will invite Justice Duggan to indicate his conclusion first.
2 DUGGAN J: The appellant has appealed against his sentence in relation to various offences committed on 10 January 1998. The sole ground of appeal is that the global sentence which was imposed for these offences was manifestly excessive.
3 The appellant was presented on an information which alleged that he committed two offences of armed robbery and two offences of illegal use of a motor vehicle. It was further alleged that he committed the offence of burglary and threatening a person with a firearm. It was alleged that each of these offences was committed as part of a joint enterprise with a number of other offenders.
4 At trial the appellant was convicted of the two counts of armed robbery and the two counts of illegal use of a motor vehicle. He was acquitted on the charges of burglary and threatening another with a firearm.
5 It is necessary to refer to some of the details of the offences. The victims in the first armed robbery were a family by the name of Burman who live at Brahma Lodge. At approximately 12.20 am. on 10 January 1998, three men armed with knives and wearing balaclavas gained entry to their house. Mr and Mrs Burman and their 20 year old son were at home. The men threatened the family and demanded to know the whereabouts of a rifle belonging to the family. Mrs Burman went to her car and handed over the rifle. After the men had left Mr Burman discovered that the telephone wires to the premises had been cut. The appellant was one of the men involved.
6 The second armed robbery was committed by the appellant and three other men at McDonald's restaurant at Pooraka later on the same evening. The men travelled to the premises in a car which was illegally used by them. One was armed with a loaded rifle, another with a replica pistol and the third with a knife. Money was demanded from a young female attendant. She was made to take one of the men to a safe which was located in a room at the rear of the premises. There the manager of the premises was made to open the safe and approximately $6,400 was taken by the men. The learned sentencing judge noted that the young assistant was fearful for her life and the incident has had a profound effect on her and her family. She has required counselling. The manager has also been affected by the incident. The men escaped in one vehicle and then changed over to another, which they illegally used. They were eventually apprehended by the police in the course of a chase.
7 I have said that the learned sentencing judge imposed a global penalty in respect…

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 Wells No. Sccrm-99-57 Judgment No. S196

Details

AGLC: R v Wells No. Sccrm-99-57 Judgment No. S196 [1999] SASC 196
Case: [1999] SASC 196
Decision Date: 23 June 1999

CaseChat Overview and Summary

In the matter of R v Wells, the appellant challenged his sentence for multiple offences committed on 10 January 1998. The appellant was convicted of two counts of armed robbery and two counts of illegal use of a motor vehicle, but acquitted on charges of burglary and threatening a person with a firearm. The Court of Criminal Appeal was tasked with determining whether the global sentence imposed was manifestly excessive. The appellant argued that the sentence was too harsh, particularly given his age, disadvantaged upbringing, and lack of a significant criminal history.

The legal issues before the Court of Criminal Appeal centred on the appropriate application of the principle of totality, the relevance of the appellant's plea of guilty, and the consideration of the appellant's personal circumstances, including his age and potential for rehabilitation. The Court had to consider whether the global penalty was appropriate, whether the sentencing judge had given adequate weight to the principle of totality, and whether the non-parole period was excessive. The appellant's legal representatives argued that the linked nature of the offences should lead to a reduced term of imprisonment.

The Court of Criminal Appeal found that the principle of totality did not warrant a reduction in the penalty, and that the appellant's late plea of guilty did not justify any leniency. However, the Court did consider the appellant's age and personal circumstances, which led to a conclusion that the non-parole period should be reduced. Justice Duggan allowed the appeal to reduce the non-parole period from eight and a half years to seven years while confirming the head sentence. Justice Mulligan, however, found the sentence manifestly excessive and allowed the appeal, imposing a sentence of 10 years with a non-parole period of six years. Justice Olsson, concurring with the majority, ordered the non-parole period to be reduced to seven years.

Orders