SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILLIAMS
[2006] SASC 237
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
10 August 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE - SENTENCES ON TWO OR MORE COUNTS
Appeal against sentence - appellant pleaded guilty to aggravated serious criminal trespass and theft in a place of residence committed on 23 January 2005 and was convicted following trial by jury of illegal use of a motor vehicle, four counts of theft, aggravated robbery and dishonestly manipulating an automatic teller machine all committed in February 2005 - appellant sentenced in respect of all of the offending - appeal on grounds that sentences imposed were manifestly excessive due to misapplication of totality principle and section 18A of the Criminal Law (Sentencing) Act 1988 (SA) - whether sentencing Judge had correctly applied section 18A - whether sentencing Judge had correctly applied totality principle - discussion of relevant case law - consideration of the sentence imposed - Held: error identified on court record to be corrected - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 170(2), s 134, s 86A, s 137(2), s 141(1), s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(ea) and (2), s 18A, referred to.
Markarian v R (2005) 215 ALR 213; AB v R (1999) 198 CLR 111; Wong v R (2001) 207 CLR 584; R v Simpson (2004) 89 SASR 515; R v Place (2002) 81 SASR 395; R v Place (2002) 81 SASR 395; R v Creed (1985) 37 SASR 566; R v Major (1998) 70 SASR 488; Postiglione v The Queen (1997) 189 CLR 295; R v Becker (2005) 91 SASR 498; R v Jones [2005] SASC 183 , considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"Totality principle"
R v WILLIAMS
[2006] SASC 237Court of Criminal Appeal: Doyle CJ, Duggan and Gray JJ
DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons given by Gray J.
I agree also that the endorsement on the Information and the District Court record should be corrected. It is important that these court records reflect accurately the sentence that is imposed.
DUGGAN J: I agree with the reasons of Gray J. The appeal against sentence should be dismissed.
GRAY J:
This is an appeal against sentence.
The appellant, John Christopher Williams, pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence[1] and theft,[2] committed on 23 January 2005.
[1] Section 170(2), Criminal Law Consolidation Act 1935 (SA). Maximum penalty: life imprisonment.
[2] Section 134, Criminal Law Consolidation Act. Maximum penalty: 10 years imprisonment.
In addition, the appellant was convicted by jury verdict following a trial in the District Court, of illegal use…
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- AGLC
- R v Williams [2006] SASC 237
- Case
- [2006] SASC 237
- Decision Date
CaseChat Overview and Summary
The court identified an error in the court record, which suggested that a single sentence of imprisonment was imposed in respect of all offending, which was at odds with the sentences pronounced. The court held that it was important that the formal record of the court correctly records the sentences imposed and that separate sentences imposed in respect of separate offending should be clearly disclosed on the face of the Court Record. The endorsement and the Court Record should be corrected to accurately record the sentences imposed. The appeal was dismissed.
The court concluded that the principle of totality should be considered after a judge has determined the sentence to be imposed having had regard to all other relevant considerations. The sentencing remarks in the present case did not disclose whether this had occurred, and there was a possibility that the Judge fell into error. However, each of the separate sentences imposed by the sentencing Judge was well within the range of appropriate sentences for the relevant criminal conduct. The Judge had in mind a sentence that would not crush the appellant, and the Judge expressed the view that he would make the sentences as short as he thought he could make them consistent with his duty to the community to impose sentences that would operate as an effective deterrent. The aggregate sentence imposed could not be described as crushing, and the period of imprisonment to be served represented appropriate punishment with respect to the appellant’s offending.
The court also noted that there was no suggestion that the sentencing Judge had regard to any irrelevant factors when determining the sentences to be imposed, nor was there any suggestion that the Judge failed to have adequate regard to any relevant considerations. The court was not prepared to conclude that the sentencing Judge incorrectly applied the totality principle, and there had not been a miscarriage of justice. The sentences imposed, both separately and when aggregated, were within a proper sentencing discretion for the appellant’s criminal offending. The court ordered the endorsement and the Court Record to be corrected to accurately record the sentences imposed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In this case, the sentencing Judge indicated his desire to impose a sentence that was not crushing upon the appellant prior to announcing the sentence that he would otherwise impose. In accordance with authority, the principle of totality should be considered after a judge has determined the sentence to be imposed having had regard to all other relevant considerations.[24] The sentencing remarks in the present case do not disclose whether this in fact occurred. To this extent, it is possible that the Judge fell into error. [24] See R v Becker (2005) 91 SASR 498.Consideration of the sentence Section 353(4) of the Criminal Law Consolidation Act, in so far as it relates to appeals against sentence, relevantly provides:… on an appeal against sentence, the Full Court must—(a) if it thinks that a different sentence should have been passed—(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or(b) in any other case—dismiss the appeal.Accordingly, an appellate court must only interfere with a sentence if it thinks that a different sentence should have been passed. Otherwise, the appellate court must dismiss the appeal. The appellant’s offending was serious. As earlier observed, he preyed on the vulnerable and elderly causing considerable upset and distress. Notwithstanding that the appellant was drug driven, his conduct revealed an element of callousness. The appellant’s criminal antecedents preclude leniency that might otherwise be extended. Each of the separate sentences imposed by the sentencing Judge was well within the range of appropriate sentences for the relevant criminal conduct. The Judge had in mind a sentence that would not crush the appellant. The Judge expressed the view that he would make the sentences as short as he thought he could make them consistent with his duty to the community to impose sentences that would operate as an effective deterrent. In my view the aggregate sentence imposed cannot be described as crushing. The period of imprisonment to be served represents appropriate punishment with respect to the appellant’s offending. There was no suggestion that the sentencing Judge when determining the sentences to be imposed, had regard to any irrelevant factors. Nor was it suggested that the Judge failed to have adequate regard to any relevant considerations. I am not prepared to conclude that the sentencing Judge incorrectly applied the totality principle. There has not been a miscarriage of justice. The sentences imposed, both separately and when aggregated, were within a proper sentencing discretion for the appellant’s criminal offending. The Court Record Following the delivery of the sentencing remarks and the imposing of the five sentences, two further records were made. The first was an endorsement prepared and signed by the associate to the sentencing Judge. That endorsement under the heading, “Sentence of Imprisonment” recorded the following:As to the January offences [information dated 1 March 2006]Single sentence imposed pursuant to s18A of the Sentencing ActCt 1 - 3 years and 6 monthsCt 2 – 6 months= 4 years25% discount for pleas of guiltySentence: 3 years imprisonmentAs to the February offences [information dated 14 March 2006]Ct 4 – 4 yearsCt 1 – 9 monthsCt 5 – 6 monthsOffences all part of one criminal enterprise therefore to be served concurrentlySentence: 4 years imprisonmentTo be served cumulative upon the 3 years imprisonment imposed for January offencesCt 2 – 9 monthsCt 3 – 9 monthsCt 6 – 9 monthsCt 7 – 9 monthsTo be cumulative on each other and to be cumulative on the January offencesTotal Head Sentence Imprisonment for 10 yearsNon Parole Period 7 years[3 years + 4 years + 3 years]Commencement date of sentence and non-parole period 22 February 2005.Driver’s Licence DisqualificationHH imposed Licence Disqualification for 5 yearsTo commence 22 February 2005VIC Levy $480.00[Signed]…Associate