R v White No. Sccrm-98-262 Judgment No. S43 - [1999] SASC 43

R v WHITE
[1999] SASC 43

Court of Criminal Appeal: Millhouse, Prior and Duggan JJ

MILLHOUSE J. I agree. The decision of the Court therefore is appeal allowed but only to the extent of reducing the head sentence to 12 months and the non-parole period of six months.
PRIOR J. I agree.
DUGGAN J. The appellant pleaded guilty to a charge of attempting to dissuade a witness from attending to give evidence against a woman named Fosdike. Fosdike was charged with making a false report to the police and attempted false pretences. The learned sentencing judge sentenced the appellant to imprisonment for 20 months with a non-parole period of nine months. He then suspended that sentence upon condition that the appellant enter into a recognisance to be of good behaviour for a period of two years. Other relevant conditions were that she perform 100 hours of community service during the period of 12 months from the date of the sentence and that she obey the directions of a community services officer.
The offences took place in the following circumstances: At the time of the incident Ms Fosdike lived in a cul-de-sac opposite the house of a woman called Melissa Kendrick. On 18 May 1997 Fosdike reported a housebreaking and larceny which she said had taken place at her premises. She also made a claim on her insurance company for the loss of approximately $18,000 worth of property. It was established subsequently that the claim was false and Fosdike was charged with the offences to which I have referred. It would appear that Fosdike told Melissa Kendrick of the plan to make the false claim and Kendrick provided a statement to the police in which she revealed the discussion she had with Fosdike. As a result Kendrick became a potential witness in the proceedings commenced by the police against Fosdike.
The appellant and her husband were acquaintances of Fosdike. They went to see Fosdike on the occasion that gave rise to the charge. They were told that Kendrick had given the statement to the police. The appellant's husband then walked over to Kendrick's home and threatened her as to her role in the matter. The appellant then went over to Kendrick’s house. She berated Kendrick for giving the statement to the police. She threatened Kendrick by saying that she would assault her and she said she would report Kendrick to the authorities for neglecting the care of her children. She was there for only a few minutes.
The appellant was 27 years of age at the time of sentencing. She had no prior convictions at the time she faced the court on this occasion. Her counsel informed the learned sentencing judge that she had lived a hard, difficult life; that she had problems with her health; and that at the age of 19 years she had spent 11 months in Glenside Hospital as a result of a nervous breakdown. She has two sons aged six and nine.
The appellant has argued…

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.

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Details

Case: [1999] SASC 43
Decision Date: 15 February 1999

CaseChat Overview and Summary

In the matter of the appeal brought by White against the Crown, the appellant was convicted of attempting to dissuade a witness from attending to give evidence against a woman named Fosdike, who had been charged with making a false report to the police and attempted false pretences. The Court of Criminal Appeal, consisting of Millhouse, Prior, and Duggan JJ, heard the appeal against the sentence imposed by the trial court. The appellant, who had no prior convictions, was sentenced to imprisonment for 20 months with a non-parole period of nine months, which was then suspended on certain conditions. The appellant argued that the sentence was manifestly excessive and disproportionate when compared to the sentence imposed on Fosdike.

The primary legal issues before the Court of Criminal Appeal were whether the sentence was manifestly excessive and whether there was an inappropriate disparity between the sentences of the appellant and Fosdike. The Court noted that a comparison between the sentences was inappropriate due to the different nature of the offences charged. However, the Court found that the appellant's claim that the sentence was manifestly excessive had merit. The Court was of the view that the trial judge failed to sufficiently consider the particular circumstances of the offence and the fact that it was the appellant's first appearance on a criminal charge.

The Court of Criminal Appeal allowed the appeal but only to the extent of reducing the head sentence to 12 months and the non-parole period of six months. The sentence was to be suspended on the same terms and conditions as the original sentence. The Court observed that the appellant's actions were impulsive and driven by anger rather than a premeditated attempt to dissuade the witness from giving evidence. The Court also highlighted the seriousness of the offence, but concluded that the sentence imposed by the trial court was manifestly excessive. The final orders of the Court of Criminal Appeal substituted the original sentence with imprisonment for 12 months with a non-parole period of six months, which was suspended on the same terms and conditions.

Orders