Sabato v The Queen

Case [2021] SASCA 65

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

SABATO v THE QUEEN

[2021] SASCA 65

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)

24 June 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against conviction and sentence.

On 15 August 2018, the appellant was sentenced to 3 years 6 months imprisonment for various drug offences, suspended upon his entering into a bond to be of good behaviour.

The appellant subsequently committed 19 further offences, and by so doing failed to comply with his bond.  He pleaded guilty to this offending, which included one count of unlawful possession, two counts of driving while suspended, and several offences committed on 17 April 2020, namely serious criminal trespass (non-residential), theft, carrying an article of disguise (the disguise offence), possessing an article to commit an offence (the equipment offence), and possessing a prohibited weapon.

For the unlawful possession offence, the sentencing Judge gave a head sentence of 6 months imprisonment, discounted to 3 months 19 days.  For the two driving while suspended offences, his Honour identified head sentences of 6 months and 8 months imprisonment, discounted to 3 months 19 days and 6 months, respectively.  In respect of the 17 April 2020 offending, the Judge adopted a starting point of 3 years, discounted to 1 year 9 months 19 days imprisonment.  For the remaining offences, his Honour recorded a conviction without further penalty.

The Judge ordered that the sentences be served cumulatively, giving a total sentence for the fresh offending of 2 years 10 months 27 days imprisonment.  His Honour revoked the bond, and ordered that the sentence for the fresh offending be served cumulatively upon the sentence on account of the breach of bond, leading to a total sentence of 6 years 4 months 27 days imprisonment.  His Honour fixed a non-parole period of 4 years 2 months 23 days. 

The appellant appeals his convictions for the disguise and equipment offences on three grounds, each asserting miscarriage of justice.  The first complains that the appellant could not in law have been convicted of the equipment offence upon the admitted facts, focussing upon the offence’s preparatory nature and the fact that the appellant had already committed serious criminal trespass and theft when apprehended.  The second contends that the conviction for the disguise offence was precluded by the conviction for the equipment offence, as the face mask the subject of the former charge was also particularised, amongst other items, in the latter charge.  The third complains that, in pleading guilty to the equipment offence, the appellant did not appreciate the nature of the charge he was admitting. 

The appellant also appeals his sentence.  He contends that the head sentence and…

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Sabato v The Queen [2021] SASCA 65
Case
[2021] SASCA 65
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CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant by a sentencing judge. The appellant contended that the starting point of six months imprisonment for the offence of unlawful possession committed on 1 August 2019 was manifestly excessive.

The court was required to determine whether the sentence imposed was manifestly excessive, particularly in relation to the component for unlawful possession, and whether the sentencing judge erred by failing to make express allowances for concurrency and totality in the overall sentence.

The court found that the six-month starting point for the unlawful possession offence was indeed manifestly excessive, especially when considered in conjunction with the other sentences imposed. While acknowledging the principles of concurrency and totality, the court found no error in the sentencing judge's decision to structure the sentence without express allowances for these principles, inferring that some degree of concurrency was afforded in relation to certain offences. The court allowed the appeal against sentence and proceeded to resentence the appellant, taking into account the circumstances of each offence, the appellant's personal circumstances including a difficult upbringing and recent personal crises, his insight and remorse demonstrated through admissions and guilty pleas, and his lack of prior significant imprisonment.

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

The appellant contended that the starting point of 6 months imprisonment for the 1 August 2019 offence of unlawful possession was manifestly excessive. While this was not the subject of any significant attention in the parties’ submissions, I consider that this component of the overall sentence was also manifestly excessive, at least when considered in conjunction with the other sentences imposed upon the appellant.Conclusion The conclusions I have reached in relation to Grounds 1 and 4 make it appropriate to allow the appeal against sentence, and to resentence the appellant.Grounds 2 and 3: concurrency and totality Having already reached the conclusion that it is appropriate to allow the appeal against sentence, there is no need to address the grounds challenging the sentencing Judge’s failure to make any allowance for concurrency or totality in any detail. It is sufficient to refer to this Court’s previous summaries of these principles; their role as mechanisms for ensuring proportionality between the penalty ultimately imposed and the circumstances of the offending and the offender; and the considerable latitude to be afforded to sentencing Judges in their application of these principles.[79] [79] R v W, PL [2017] SASCFC 119 at [37]-[51]; Giordimania v The Queen [2020] SASCFC 28 at [35]-[36]. In circumstances where the sentencing Judge utilised s 26 of the Sentencing Act in respect of the 17 April 2020 offences, it is understandable that the Judge did not make express reference to the principles of concurrency or totality in respect of the sentence for those offences. It can be safely inferred that his Honour afforded at least some degree of concurrency in respect of those offences in arriving at the single penalty he identified. As each of the other offences for which penalties were imposed involved separate incursions into criminality, it is difficult to criticise his Honour’s decision to make each of the individual sentences he identified cumulative upon the others. Nor do I think any criticism can be made of the Judge for not making any adjustment to the overall sentence on the grounds of totality. In summary, while I have separately concluded that the sentence imposed by the Judge was manifestly excessive, I do not think any process error has been established by reason of his Honour’s decision to structure the sentence he imposed without any express allowance or adjustment for concurrency or totality. Resentencing Having decided to allow the appeal against sentence, it remains to resentence the appellant. In so doing, I have had regard to the circumstances of each of the appellant’s offences, as well as his personal circumstances, as outlined in the course of these reasons. It is not necessary for me to repeat the detail of these matters. Indeed, I do not need to say anything further about the circumstances of the various offences. As for the appellant’s personal circumstances, I have had regard to his difficult upbringing and personal history, and the fact that his offending occurred in circumstances where he had lost his job, was taking drugs and had effectively lost control of his life. It is significant that the appellant’s offending involved a large number of separate incursions into crime over a relatively extended period of time, particularly given his poor history of similar offending. At the same time, it is also significant that the appellant has shown a level of insight and remorse, including through his prompt admissions (in relation to the 17 April 2020 offending), his letters to Bluize Pty Ltd and the Court, and his pleas of guilty. I have also had regard to the fact that the appellant has not previously served any significant period of imprisonment.

Ratio Decidendi

Legal Principle Established

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