R v Wilson No. Sccrm-00-173 - [2000] SASC 435

R v WILSON
[2000] SASC 435

Court of Criminal Appeal: Prior, Olsson and Debelle JJ

1................ PRIOR J......................... When judges fail to disclose a discount in a sentence for a plea of guilty the usual question for this Court is whether, in all the circumstances, the sentence actually imposed is manifestly excessive. The circumstances of this offence and the particular offender are such that, if that were the only question for this Court, I would be disposed to say that the sentence of seven years for the armed robbery, taking into account the period in custody served by the appellant since serving four months for breach of parole conditions, was not manifestly excessive. Suffice it to refer to the recent decision of this Court in Lumsden[1] and the authorities referred to therein. In particular, in R v Rooke[2] the Chief Justice spoke of a starting point of seven years as being “well within the range of sentences usually imposed for armed robbery”. His Honour also said that such a sentence “could have even been higher without being excessive”.

[1] R v Lumsden [2000] SASC 49

[2] (SACCA, 19 June 1998, S6738, unreported)

In my opinion, the sentence of seven years is well within the range of sentences for this offence, even allowing for an early plea of guilty. However, the peculiarity in this case is that the sentencing judge did not appear to give any discount for the plea of guilty on the head sentence at all. Rather, His Honour said, perhaps encouraged to do so by the appellant’s counsel, that he would give effect to the plea of guilty in the fixing of the non-parole period. Such an approach is correct with respect to the mandatory sentence of life imprisonment for murder, but not for a case like this.
I agree with Justice Olsson that the identified error permits this Court to consider the exercise of the sentencing discretion afresh, fettered though it is by the inability to increase the head sentence on appeal. Considering the matter afresh, I would impose a head sentence of no less than the sentence imposed by the sentencing judge here, having regard to the period of some three months spent in custody before sentence and after serving four months in custody from 24 October 1999 for breach of parole conditions. Because of the plea of guilty I too would reduce that sentence to six years cumulative upon the eight months and eight days outstanding from the previous sentence. I would fix a non‑parole period of three and a half years given the particular personal circumstances of the offender. I would make the same order as made by the sentencing judge with respect to the head sentence of six years, eight months and eight days and the non-parole period of three and a half years. That means they would run from the date when the appellant was sentenced in the court below, 29 May 2000.

OLSSON J This is an appeal,…

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: [2000] SASC 435
Decision Date: 13 December 2000

CaseChat Overview and Summary

The case of R v Wilson involved an appeal against a sentence imposed on the appellant following his guilty plea to armed robbery. The appellant, a 30-year-old Aboriginal man with a history of mental health issues and substance abuse, had committed the armed robbery while on parole for a similar previous offence. The District Court Judge sentenced the appellant to seven years imprisonment, to run cumulatively with an existing eight months and eight days sentence for breach of parole conditions, and ordered a non-parole period of four years. The appellant argued that the sentence was manifestly excessive and that the sentencing judge had erred by failing to properly account for the discount attributable to the plea of guilty and by giving insufficient weight to personal circumstances. The Court of Criminal Appeal was tasked with determining whether the sentence was excessive and whether the sentencing judge had erred in the manner described.

The legal issues before the Court of Criminal Appeal were whether the sentence was manifestly excessive and whether the sentencing judge's failure to properly account for the discount for a plea of guilty and give sufficient weight to personal circumstances constituted an error warranting a fresh exercise of the sentencing discretion. The Court noted the importance of judicial officers clearly stating the discount given for a plea of guilty to avoid unnecessary appeals and to ensure due administration of justice.

The Court found that the sentencing judge had erred by applying the discount only to the non-parole period rather than the head sentence. The Court held that this was a manifest error as it could lead to the appellant serving the full head sentence if released on parole was not taken or parole was breached. The Court exercised its discretion afresh and determined that a head sentence of six years, reduced from the original seven years to account for the plea of guilty, was appropriate. The Court also fixed a new non-parole period of three years and six months, considering the appellant's mental health and conduct since being in custody.

The Court of Criminal Appeal allowed the appeal, set aside the original sentence, and substituted a new sentence of six years imprisonment, cumulative with eight months and eight days, with a non-parole period of three years and six months. The new sentence was to run from the date of the original sentencing, 29 May 2000.

Orders