R v Wilson

Case [2010] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WILSON

[2010] SASC 89

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Vanstone)

7 April 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - IRREGULARITIES - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TIME SPENT IN CUSTODY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT

Application for permission to appeal against sentence - defendant and applicant pleaded guilty to two counts of committing serious criminal trespass in place of residence, two counts of theft and one count of damaging property with intent - Judge imposed separate sentences and made separate reductions for pleas of guilty for each offence - offending breached bond with respect to suspended sentence of imprisonment of four years six months, which sentence was revoked and ordered to be served cumulatively - total effective head sentence of 74 months imprisonment imposed - whether defendant's withdrawal from methadone program precipitated offending and relevant to sentencing - effect of inconsistent approach taken by Judge in approach to reductions for pleas of guilty - whether sentence should have been backdated in lieu of a reduction to proposed head sentence and non-parole period - whether sentence imposed inappropriate in circumstances.

Held (Doyle CJ & Vanstone J): permission to appeal refused.

(Gray J): permission to appeal granted - appeal dismissed.

The Court: withdrawal from methadone program not relevantly related to defendant's offending - errors in Judge's approach to sentencing established - Judge's approach to reductions for pleas inconsistent - reduction of two years from head sentence in respect of 18 months spent in custody, artificial - Judge ought to have backdated sentence to date when defendant taken into custody - approach taken resulted in lack of clarity in sentencing process - although errors in sentencing approach established, different sentence should not be imposed - overall sentence imposed by Judge was appropriate in circumstances.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 30 and s 58; Criminal Law Consolidation Act 1935 (SA) s 353; Correctional Services Act 1982 (SA) s 75, referred to.
R v Colson (1999) 73 SASR 407; PNJ v R (No 4) (2008) 254 LSJS 302; PNJ v R (2009) 83 ALJR 384; R v Pahuja (No 2) (1989) 50 SASR 551; R v McLaren (2009) 105 SASR 29; Frank v Police (2000) 77 SASR 273; R v McHugh (1985) 1 NSWLR 588; AB v The Queen (1999) 198 CLR 111; Cameron v The Queen (2002) 209 CLR 339; Queen v Buckman (1988) 47 SASR 303; R v Hughey (2007) 252 LSJS 316; R v Al-Zuain (2009) 103 SASR 567; R v Slater (1984) 36 SASR 524, considered.

R v WILSON
[2010] SASC 89

Court of Criminal Appeal:       Doyle CJ, Gray and Vanstone JJ

  1. DOYLE CJ:          I would…

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R v Wilson [2010] SASC 89
Case
[2010] SASC 89
Decision Date

CaseChat Overview and Summary

The case of R v Wilson involves an application for permission to appeal against a sentence imposed by a District Court judge. The defendant, who had pleaded guilty to multiple offences, including serious criminal trespass and theft, sought permission to appeal against the sentence, arguing that it was manifestly excessive due to the judge's failure to sufficiently consider the defendant's expulsion from a methadone program prior to the offending. The Court of Criminal Appeal was tasked with determining whether the sentence was indeed inappropriate and if the defendant's circumstances warranted a different approach to sentencing.

The legal issues before the Court of Criminal Appeal included whether the defendant's expulsion from the methadone program was a special circumstance warranting a reduction in the previously suspended sentence, and whether the approach taken by the judge in applying reductions for pleas of guilty was inconsistent. The Court also had to consider if the sentence should have been backdated to the date of the defendant's initial custody, rather than applying reductions to the proposed head sentence.

The Court of Criminal Appeal concluded that while the sentence imposed was merciful in the circumstances, there were errors in the sentencing approach. The judge should have imposed a single sentence for all offences and revoked the suspended sentence. The Court determined that the sentence should have been backdated to the date the defendant was taken into custody, resulting in a different non-parole period and eligibility for parole. Despite these errors, the Court found that the overall sentence was appropriate and did not warrant a different outcome. Therefore, the Court granted permission to appeal but dismissed the appeal, maintaining the original sentence imposed by the District Court.

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

In my view, the offending conduct was serious, the suggested excuse should be rejected and having regard to the defendant’s criminal antecedents, there was little scope for leniency. I consider that the sentence imposed was merciful in the circumstances. Conclusion I have reached the conclusion that the overall sentence imposed was an appropriate sentence. Although there were errors in the sentencing approach, I do not consider that a different overall sentence “ought to have been passed”. I would have acted under section 18A of the Criminal Law (Sentencing) Act and imposed the one sentence in respect of all the offending. I would have revoked the suspended sentence. I would have backdated the sentence and the non-parole period to commence on 8 May 2008, the date on which the defendant was taken into custody. This would have resulted in the head sentence being served by February 2016 and the defendant being eligible for parole in December 2012. Having regard to the foregoing, I consider that permission to appeal should be granted, but the appeal dismissed. VANSTONE J: This is an application for permission to appeal against a sentence imposed in the District Court. A judge of this Court referred the application to the Court of Criminal Appeal for consideration. The only matter agitated upon the appeal was that the sentence was manifestly excessive because the judge gave insufficient weight to the fact that just prior to the first offences the applicant had been expelled suddenly from the methadone program. It was said that the explanation that this provided for the offending should have led, in the first instance, to reduction of the term of a previously suspended sentence which the applicant became liable to serve and, in any event, to a more merciful approach to the sentences imposed by the judge. The applicant pleaded guilty to five offences of dishonesty in the Magistrates Court and was committed for sentence. The offending occurred on two occasions separated by several months, at two residential premises. The first group of offences, in September 2007, were serious criminal trespass in a place of residence, theft and damaging property. The second, in January 2008, consisted of serious criminal trespass in a place of residence and theft. During this period the applicant was subject to a 2 year bond to be of good behaviour, associated with a suspended sentence of four and a half years imprisonment, with a non-parole period of 2 years. That had been imposed in the Magistrates Court on 15 February 2006. Prior to being sentenced in the District Court the applicant spent about 18 months in custody on remand for the two groups of offences. In sentencing, the judge revoked the suspension of the previous sentence and ordered that it be carried into effect. He declined to reduce the term of the sentence, finding no special circumstances justifying that course. The approach taken by the judge to the sentences for the new offences was as follows. Dealing with the first group, he indicated a starting point of 24 months for the serious criminal trespass and a reduction of four months (16.6 per cent) for the plea. That left a period of 20 months. He then subtracted a period of 12 months to reflect half of the 18 months which had been spent on remand. The judge explained that two years represented “about the sort of head sentence which would reflect ordinarily a non-parole period of 18 months …”. That left a head sentence of eight months. On the theft offence, the judge started with eight months and reduced that term to six months (25 per cent) in recognition of the plea. He ordered that it be served concurrently with the eight months. No further penalty was imposed for the damaging property offence.

Ratio Decidendi

Legal Principle Established

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