Shortman v The King - [2023] SASCA 60

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SHORTMAN v THE KING
[2023] SASCA 60
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
8 June 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
The applicant entered a plea of guilty to aggravated robbery. The applicant, with another, robbed a bottle recycling depot. They concealed their identities, armed themselves with bats and threatened two victims.
The applicant appeals that the sentence imposed was manifestly excessive as the sentencing Judge erred by applying the sentencing range set out in R v Place. The applicant also contends that the sentencing Judge did not appropriately deal with his criminal antecedents.
Held, per the Court, dismissing the appeal:
1. The sentencing Judge appropriately dealt with the applicant’s criminal antecedents.
2. The sentence imposed was not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 137; Sentencing Act 2017 (SA), referred to.
Adams (a Pseudonym) v The Queen [2021] SASCA 47; Hackett v The Queen [2021] SASCA 32; House v The King (1936) 55 CLR 499; Pateras v The Queen (2021) 139 SASR 549; R v Corlett (2017) 128 SASR 521; R v Saleh [2017] SASCFC 75; R v Harradine & Harradine [2012] SASCFC 103; R v Gannon (2012) 113 SASR 1; R v Kelly [2023] SASCA 22; R v Place (2002) 81 SASR 395; R v Wirth (1976) 14 SASR 291; Rendic v The Queen [2021] SASCA 23; Soun v R; R v Soun [2021] SASCA 119; Wong v The Queen (2001) 207 CLR 584, considered.

SHORTMAN v THE KING
[2023] SASCA 60
Court of Appeal – Criminal: Lovell, Bleby and David JJA

THE COURT: The applicant, wielding a bat and in company with another, robbed a bottle recycling depot of $2,420. After taking into account the applicant’s plea of guilty and allowing for time spent in custody the sentencing Judge imposed a term of imprisonment of five years three months and two days and fixed a non-parole period of two years and 11 months.
The applicant submits that the sentencing Judge failed to appropriately deal with his prior criminal record and that, in any event, the sentence imposed is manifestly excessive.
Background facts
On 7 June 2021, the applicant and Greaves, the co-accused, robbed a bottle recycling depot of $2,420. The applicant planned the offending to replace money, intended for his daughter’s birthday present which he had spent on purchasing methamphetamine for himself. He had previously worked at the recycling depot and was aware of the time when the takings would be at their highest. The applicant prepared for…

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 Shortman v The King

Details

AGLC: Shortman v The King [2023] SASCA 60
Case: [2023] SASCA 60
Decision Date: 8 June 2023

CaseChat Overview and Summary

The applicant, Shortman, appealed against a sentence imposed by a sentencing judge for aggravated robbery. The dispute concerned whether the sentencing judge had adequately considered the applicant's prior criminal record and whether the sentence itself was manifestly excessive. The appeal was heard by Lovell, Bleby, and David JJ in the Supreme Court of South Australia.

The legal issues before the court were whether the sentencing judge erred in failing to give sufficient weight to the applicant's criminal history and whether the imposed sentence of five years, three months, and two days imprisonment, with a non-parole period of two years and 11 months, was manifestly excessive in all the circumstances.

The Court of Appeal considered the principles of sentencing, particularly in light of the Sentencing Act 2017 (SA), which mandates that the protection of the community is the primary purpose of sentencing. While acknowledging the applicant's submission that the sentencing judge did not adequately refer to his criminal history after the initial mention, the Court found that the sentencing discretion is broad and involves balancing various factors. The Court noted that the sentencing judge had considered the applicant's personal circumstances, the impact on dependents, and the remorse shown, as well as the mitigating effect of the early guilty plea. The Court affirmed that while appellate courts may indicate expected sentencing ranges, the ultimate sentencing task requires a value judgment to balance incommensurable factors, with the primary purpose being community safety. The Court did not find that the sentencing judge had failed to appropriately consider the relevant factors or that the sentence was manifestly excessive.

Orders

Orders of the court

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Background

Background to the litigation

The applicant submits that the sentencing Judge failed to appropriately deal with his prior criminal record and that, in any event, the sentence imposed is manifestly excessive.Background facts On 7 June 2021, the applicant and Greaves, the co-accused, robbed a bottle recycling depot of $2,420. The applicant planned the offending to replace money, intended for his daughter’s birthday present which he had spent on purchasing methamphetamine for himself. He had previously worked at the recycling depot and was aware of the time when the takings would be at their highest. The applicant prepared for the robbery by stealing a number plate and fixing it to the vehicle he used to commit the offence. He also enlisted Greaves to help rob the recycling depot. The pair concealed their identities and armed themselves with bats. During the robbery, the applicant and Greaves confronted two employees who were working at the recycling depot. The applicant threatened and pushed them while demanding the money. Unsurprisingly, the victims were traumatised by the incident. Sentence The applicant entered a plea of guilty to aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The circumstances of aggravation were the use, or threatened use, of an offensive weapon and that the offence was committed with another. The timing of the plea entitled the applicant to a reduction in sentence of up to 15 per cent. The sentencing Judge considered various reports and a victim impact statement. He acknowledged the applicant’s limited criminal history consisting of, inter alia, trespass, common assault and driving while disqualified. He did not refer to the applicant’s criminal history again in his thorough sentencing remarks. He accepted that the applicant was remorseful and had paid back the stolen money. The sentencing Judge considered the applicant’s personal circumstances in detail. He had regard to the hardship a sentence of imprisonment would have on the applicant’s dependents.[1] However, the hardship identified was not so exceptional so as to have a significant effect on the penalty. [1] R v Wirth (1976) 14 SASR 291; Adams (A Pseudonym) v The Queen [2021] SASCA 47. The sentencing Judge observed that he was guided by the sentencing principles stated in R v Place (‘Place’).[2] But for the plea of guilty, the sentencing Judge would have imposed a sentence of imprisonment for six years and six months. The applicant’s plea of guilty entitled him to a 15 per cent reduction and the sentencing Judge reduced the term of imprisonment to five years, six months and 10 days. The sentencing Judge then reduced that sentence by three months and eight days to account for time spent in custody and on home detention bail. The final sentence was imprisonment for five years, three months and two days. The sentencing Judge imposed a non-parole period of two years and 11 months. He was unable to find that good reason existed to suspend the applicant’s sentence nor did he consider it appropriate to order that the sentence be served on home detention. [2] (2002) 81 SASR 395 at [100]-[101].Grounds of Appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

That Place should not be rigidly applied was accepted by the plurality in Place itself. Doyle CJ, Prior, Lander and Martin JJ (Gray J agreeing) observed: [9]The critical question is whether the jurisdiction to establish and maintain adequate standards of punishment for crime includes the identification of a standard of penalty by indicating a range of sentences applicable in ordinary cases of particular crimes. As Gleeson CJ pointed out in Wong, there are sound reasons why in exercising the jurisdiction appellate courts may find it useful “to indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence”.[9] R v Place (2002) 81 SASR 395 at [20]. In South Australia, the sentencing task is governed by the Sentencing Act 2017 (SA) (‘the Sentencing Act’) which was enacted well after Place was decided. The Sentencing Act, as amended, directs the court to treat the protection of the safety of the community as the primary purpose when sentencing.[10] Place has been cited with approval by this court since the Sentencing Act was proclaimed. In R v Kelly,[11] this Court reviewed some recent decisions dealing with the application of Place and nothing in that judgment suggests that the principles enunciated in Place no longer apply. The applicant did not contend to the contrary. However, the applicant submitted, correctly in our view, that what the plurality observed in Place about “discretionary considerations” remains an important matter in sentencing. [10] Sentencing Act 2017 (SA) s 3.[11] R v Kelly [2023] SASCA 22; Soun v R; R v Soun [2021] SASCA 119. In Rendic v The Queen, when considering the operation of the Sentencing Act, Lovell JA (Kelly P agreeing) observed: [12]Traditionally, a court, when sentencing an offender, had regard to the protection of the safety of the community when determining a proportionate sentence. The protection of society was one factor, amongst many, that the court took into account. Sections 3, 4, 9, 10 and 11 of the Act impact on the sentencing task. The combination of sections 3, 4 and 9 directs a sentencing court to treat the protection of the safety of the community as the primary purpose (paramount consideration) of the sentence to be imposed. Other sentencing purposes, namely to punish, to hold to account, to denounce, to deter specifically and generally and to rehabilitate, remain relevant but are referred to as secondary purposes.The sentencing discretion is broad. The sections mentioned do not direct the court as to how it must reach its final sentence; the Act is silent in that regard. The direction is that the sentence finally arrived at must achieve the protection of the safety of the community as its primary purpose. As has been observed, the troublesome nature of the sentencing discretion arises from the unavoidable difficulty in giving weight to the various factors to which the court must have regard when determining sentence. Factors bearing on the determination of a sentence frequently pull in different directions. The discretionary nature of the task means that the process does not lead to a single correct answer. The extent to which any factor bears upon the case is a matter of a value judgment. Administration of the criminal law involves individualised justice. It is the obligation of the court to balance the incommensurable factors and arrive at a just sentence which, in South Australia, ultimately reflects the primary purpose, namely the protection of the safety of the community.…..The sentencing discretion, although broad, is fettered by the Act and common law principles. Section 3 requires that the factors to be weighed be viewed through the prism of the primary purpose. However, provided the final sentence achieves the primary purpose, the weight to be given to the various factors or purposes is a matter for the sentencing court.[12] Rendic v The Queen [2021] SASCA 23 at [6].