R v Wilson - [2015] SASCFC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILSON
[2015] SASCFC 54
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Peek)
28 April 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
Appeal against sentence and the making of a serious repeat offender declaration. The appellant pleaded guilty to two serious sets of offences involving home invasions which occurred about a week apart. Each incident involved the appellant being in company with others and threatening the occupants of the properties with a weapon. The appellant was on parole at the time of his offending. The appellant’s criminal antecedents extended over a period of more than ten years. The appellant’s antecedents were serious and he had poor prospects of rehabilitation. The Judge imposed a sentence of 18 years’ imprisonment and fixed a non-parole period of 14 years and six months.
Whether the sentence was manifestly excessive. Whether, if the sentence was proportionate, it was open to the Judge to make a serious repeat offender declaration.
Held per Gray J (David and Peek JJ agreeing) (dismissing the appeal against sentence and allowing the appeal against the serious repeat offender declaration):
1. The sentences were within the Judge’s sentencing discretion and were proportionate to the appellant’s offending.
2. As the sentence was open under the ordinary principles of sentencing it was not open to the Judge to make a serious repeat offender declaration.
Criminal Law Consolidation Act 1935 (SA) s 20(3), s 137(1), s 170(1) and s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 20B(3), referred to.
R v Bechara (2014) 119 SASR 49; R v Phanos [2015] SASCFC 26, considered.

R v WILSON
[2015] SASCFC 54
Court of Criminal Appeal: Gray, David and Peek JJ
GRAY J.

This is an appeal against sentence and the making of a serious repeat offender declaration.
The defendant and appellant, Malcolm John Wilson, pleaded guilty to two serious sets of offences involving home invasions. In respect of an incident that occurred at a place of residence at Salisbury Downs on 5 November 2012, the defendant pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence,[1] aggravated assault[2] and aggravated robbery.[3] In respect of an incident that occurred at a place of residence at Penfield on 13 November 2012, the defendant pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence and aggravated robbery.
[1]    Criminal Law Consolidation Act 1935 (SA) section 170(1).
[2]    Criminal Law Consolidation Act 1935 (SA) section 20(3).
[3]    Criminal Law Consolidation Act 1935 (SA) section 137(1).
The offending on the first occasion was aggravated by reason of the defendant being in company with…

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 Wilson

Details

AGLC: R v Wilson [2015] SASCFC 54
Case: [2015] SASCFC 54
Decision Date: 28 April 2015

CaseChat Overview and Summary

This matter concerned an appeal against sentences imposed on the respondent, Mr Wilson, by a judge of the Supreme Court. The appeal was heard by Gray, David and Peek JJ of the Supreme Court of South Australia.

The legal issues before the Full Court were whether the sentences imposed were within the judge's discretion and proportionate to the respondent's crimes, and whether the judge erred in making a declaration that the respondent was a serious repeat offender.

The Court found that the sentences, including the order for partial concurrency, were within the sentencing judge's discretion and proportionate to the offences. However, the Court determined that the judge lacked the power to make a serious repeat offender declaration because the judge had not formed the opinion that the protection of the public necessitated a sentence different from that which would have been imposed under ordinary sentencing principles.

Accordingly, the appeal against the sentences was dismissed, but the appeal against the serious repeat offender declaration was allowed, and the declaration was set aside.

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

GRAY J (dissent) DAVID J (dissent)

In the within proceeding, the Judge did not form the opinion that the protection of the public required the imposition of a sentence different to the sentence imposed applying ordinary sentencing principles. In these circumstances, the Judge had no power to make a serious repeat offender declaration. Conclusion I would dismiss the appeal against sentence. I would allow the appeal against the serious repeat offender declaration. I would set that declaration aside. I agree with the orders proposed by Gray J. I agree with his reasons. PEEK J: I agree with the orders proposed by Gray J and with his reasons.

Ratio Decidendi

Legal Principle Established

Established by:

In my view, the sentences as finally imposed were well within the Judge’s sentencing discretion and were proportionate to the defendant’s crimes. The order for partial concurrency could, in the circumstances, be viewed as merciful. Accordingly, the appeal against the sentences imposed should be dismissed. Serious Repeat Offender Declaration In making the serious repeat offender declaration, the Judge observed:Given the nature of your crimes and the fact you have been convicted of serious offences in the past, as defined in the Sentencing Act, for which you have received a sentence of imprisonment, which was not suspended, and further, in respect to the offending before me, it is obvious that you will be receiving a sentence of imprisonment which is not going to be suspended. In those circumstances, I must consider whether or not to declare you a serious repeat offender.Pursuant to s.20B (3)(b) of the Sentencing Act, I am of the opinion that your criminal history and the gravity of the offences before me warrant a particularly severe sentence in order to protect the community from you.Despite your tragic background, it is clear to me that you have chosen to lead a life of serious criminal behaviour without any consideration for the harm or danger you pose to the community.I am very mindful of your aboriginality and the particular disadvantage you have suffered as a result of your deprived aboriginal background and generally.The making of a declaration has been stated by the Court of Criminal Appeal to be appropriate only when it has been established that the person is a habitual offender and a longer term of imprisonment and non-parole period are justified for the protection of the community.I acknowledge that the court will be justified in departing from the recognised sentencing principle of proportionality by making such a declaration, only upon cogent evidence with a clear appreciation of the exceptional nature of the order.I refer to R v Jackamarra (2013) SASC 98 per Vanstone J at [18] and Nicholson J at [101]; R v P, A (2013) SASCFC 3 per White J at [82]. As Sulan J said in R v Williams (2006) 96 SASR 226 at [68], such a declaration will only arise in rare cases.Factors such as your lengthy and serious criminal history, your age, your poor prospects of rehabilitation, the period of time which has elapsed between your offences, the likelihood of further reoffending, and the nature of this offending are all relevant to the exercise of the discretion whether or not to make such a declaration. Again, I refer to what Sulan J said in R v Williams at [71].I also acknowledge that by making a declaration that you are a serious repeat offender, it will impact upon you in the future should you commit another serious offence again. However, I am satisfied that unless you are dealt with severely you will continue to be a danger to the community. True it is that a particularly lengthy sentence can still be imposed applying ordinary sentencing principles without resorting to a declaration that you are a serious repeat offender. Nevertheless, I consider the time has come for such a declaration to be made.The sentencing remarks relating to the sentences previously imposed upon you in this court reveal the gravity of that earlier offending. Your present offending reveals an alarming and disturbing escalation from what was already very serious past offending on your part. I am also satisfied that you are apathetic to your victims and the effect the crimes have had on them. Despite assistance offered to you, aimed towards you gaining an insight into your offending ways, it seems your criminal conduct has only worsened. I have no confidence that you intend to reform your criminal behaviour. You have stated so in the past, only to continue committing serious criminal offences. These offences demonstrate that, as they were committed by you whilst you were released into the community on parole. In my view, the public would be rightly frightened of you and the public needs protection from your serious offending propensity.At the request of your counsel I ordered a pre-sentence report. The report only serves to confirm your poor prospects of rehabilitation in the community through an abject failure to comply with any form of community supervision. Your community corrections officer has stated and I quote from the pre-sentence report at the bottom of p.3:'Mr Wilson shows no insight into his offending behaviours, criminogenic needs and issues with violence and substance abuse. He does not indicate genuine willingness to address his issues and adopt a law-abiding life.Mr Wilson does not appear to comprehend the impact his offending behaviour has had on himself and others. Mr Wilson acknowledged his issues but was unable to suggest strategies that would prevent future offending.'Unfortunately, that pretty much sums up your situation. Accordingly, in the exercise of my discretion I declare you a serious repeat offender.I have not done so lightly, as there are very serious consequences that flow from the making of this declaration. Ultimately, as I have remarked, I consider you to be a dangerous criminal, from whom the community requires protection through the imposition of a particularly severe sentence, including setting the non-parole period at a minimum of four-fifths of the sentence.Having declared you a serious repeat offender, I can still determine that it is not appropriate that you be sentenced as a serious repeat offender. In order for that to occur you were required to satisfy me, by evidence given on oath, that your personal circumstances were so exceptional as to outweigh the primary policy of the criminal law of emphasising public safety and further, that I am satisfied, in any event, that in all the circumstances, it is not appropriate that you be sentenced as a serious repeat offender. You have elected not to give evidence on oath to so satisfy me and so this consideration does not arise.