JASON GREGORY BURDON v THE KING [2023] SASCA 71
On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE STRETTON)
DCCRM-21-1785, DCCRM-21-866, DCCRM-21-880, DCCRM-21-1609, DCCRM-20-277, DCCRM-21-107,
DCCRM-21-1739
Applicant: JASON GREGORY BURDON Counsel: MR G MEAD SC - Solicitor: LEGAL SERVICES
COMMISSION SOUTH AUSTRALIA
Respondent: THE KING Counsel: MR R WALKER - Solicitor: DIRECTOR OF PUBLIC
PROSECUTIONS (SA)
Hearing Date/s: 15/06/2023
File No/s: SCCRM-23-000076
A
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply
to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach
any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.
BURDON v THE KING
[2023] SASCA 71
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
29 June 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST
SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST
SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG
PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF
COURT ON APPEAL - POWER TO MAKE ORDERS AS TO TIME COUNTED
AS PART OF SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN
CUSTODY AND QUASI-CUSTODY
Appeal against sentence.
The applicant was sentenced for almost 50 offences that he committed between 2 May 2019 and 1
December 2020. The first of these offences was robbery, of which the applicant was convicted
following a trial. The last was escape custody, to which he pleaded guilty. The balance consisted
mostly of offences of drive or use a motor vehicle without consent, being unlawfully on premises,
drive under disqualification or suspension, fail to comply with bail agreement, drive or use motor
vehicle without authorisation, theft, aggravated/serious criminal trespass in a place of residence and
aggravated assault. The applicant pleaded guilty to the majority of offences.
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The sentencing judge assigned notional head sentences for each offence and applied the relevant
discounts for guilty pleas, where these were applicable. Following certain corrections to the
maximum penalties for some of the offences, the total of the notional sentence components was 42
years, five months and 25 days. The judge deducted, from this total, time spent in custody of one
year, three months and 29 days, resulting in a notional term of 41 years, one month and 27 days.
Then taking into account the overall criminality of the applicant’s actions, the fact that much of the
offending constituted largely an ongoing course of conduct and the need for the ultimate sentence to
remain appropriate yet not be crushing, the judge imposed a single sentence of 15 years and fixed a
non-parole period of 12 years. He backdated the sentence to 2 December 2020, when the appellant
was taken into custody for the final time.
The applicant appealed on the ground that the judge erred in deducting the time in custody from the
notional sentence of 42 years, five months and 25 days, as opposed to from ultimate sentence of 15
years’ imprisonment. The respondent conceded that the sentencing judge erred in this regard.
Held (by the Court), granting permission to appeal, allowing the appeal and resentencing the
applicant:
1. While the judge announced that full credit would be given for the period served in custody, it
is not clear what effect that credit had on the single sentence ultimately imposed. To this
extent, the sentence is opaque. The judge erred in giving credit for time spent in custody
against the notional accumulated total, prior to reducing that notional total to the final,
proportionate sentence.
2. Pursuant to s 26(1) of the Sentencing Act 2017 (SA), the Court would impose a single head
sentence of 15 years’ imprisonment. The Court deducts from that a period of one year, three
months and 29 days for time in custody and 31 days in respect of the 52-day period spent on
home detention. This results in a head sentence of 13 years and seven months.
3. The Court fixes a non-parole period of 10 years, 10 months and 12 days. Both the head
sentence and the non-parole period are backdated to commence on 2 December 2020.
Bail Act 1985 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) ss 20(3)(c), 86A(1), 134(a),
137(a), 144(1), 170(1), 254(1), 254(2a); Motor Vehicles Act 1959 (SA) ss 74(1), 91(5); Road Traffic
Act 1961 (SA) s 45(2); Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions)
Regulations 2014 (SA) r 67(c); Sentencing Act 2017 (SA) s 44(2), 54(1)(b); Summary Offences Act
1953 (SA) s 17(a), referred to.
Ribbon v The Queen [2022] SASCA 15; R v Deng [2015] SASCFC 176; R v Malesevic [1999] SASC
321; (1999) 204 LSJS 32; R v Place (2002) 81 SASR 395; R v Tsonis (2018) 131 SASR 416; Trotta
v The Police [2008] SASC 16, considered.
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BURDON v THE KING
[2023] SASCA 71
Court of Appeal – Criminal: Livesey P, Bleby and David JJA
1 THE COURT: On this application for permission to appeal against sentence, the
respondent has conceded that the sentencing judge made an error such that the
applicant cannot be confident that he received credit for time spent in custody prior
to sentencing. That concession was properly made. Application for permission to
appeal should be granted, the appeal allowed, and the sentence quashed. It is then
necessary to resentence the applicant.
Background
2 On 3 March 2022, the applicant was sentenced for almost 50 offences that he
committed between 2 May 2019 and 1 December 2020. The first of these offences
was robbery, of which the applicant was convicted following a trial. The last was
escape custody, to which he pleaded guilty. The balance consisted mostly of
offences of drive or use a motor vehicle without consent, being unlawfully on
premises, drive under disqualification or suspension, fail to comply with bail
agreement, drive or use motor vehicle without authorisation, theft,
aggravated/serious criminal trespass in a place of residence and aggravated assault.
3 The applicant pleaded guilty to the majority of offences with which he was
charged. The offences are set out below in table form, together with the approach
taken to sentencing by the sentencing judge. The judge was faced with a
particularly complex and difficult sentencing exercise.
4 The initial approach of the sentencing judge was as follows. First, he
described all of the offending, assigned notional starting points for sentencing and
applied the relevant discounts for guilty pleas, where these were applicable. He
described the suite of offending in the following terms:
Most of [the] offences to which I have referred are a large number of offences of dishonesty
occurring one after another on entirely separate occasions, attended by degrees of obvious
planning and premeditation and mostly facilitated by you continuing to drive, illegally
obtain and use vehicles whilst unauthorised to do so.
5 The judge explicitly grouped some of the offending together for the purpose
of imposing concurrent sentences for offences within the groups. Otherwise, he
accumulated the sentences he imposed, after applying the relevant discounts for
guilty pleas. In this manner, he initially reached a notional total of 45 years, one
month and 19 days imprisonment. He then said:
Whilst in many ways this accurately reflects the criminality of your offending and the pain,
misery and loss you have callously inflicted on a large number of people, a significant
degree of concurrency is appropriate in the case of the driving whilst unauthorised offences,
as that was an ongoing course of conduct over the period of the commission of these
offences. The same can be said of the illegal use of motor vehicle offences. However even
allowing for concurrency in both of those instances and some in some other instances where
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[2023] SASCA 71 The Court
2
it is appropriate, the resulting sentence would still, in the court’s view, be crushing and
leave little scope for rehabilitation.
That is so even allowing you, which I do, a full credit of one year, three months and 29
days for your time spent in custody and indeed the sentence will be backdated to your
ultimate arrest on 2 December 2020.
Accordingly, to reflect the overall criminality of your actions, to reflect a degree of
concurrency of the notional components as appropriate, having regard to the fact that the
overall sentence must remain appropriate yet not be ultimately crushing to you, bearing in
mind everything put and tendered, and in this case the primary importance of both the
protection of the public and deterrence and, as I repeat, after allowing for your time spent
in custody, there will be a single sentence of 15 years imprisonment.
6 On 6 April, the matter was then called on again. Following a review of the
various starting points, the parties had identified certain errors with respect to the
maximum penalty for driving whilst unauthorised (which attracted a fine rather
than imprisonment) and the available maximum reductions for certain of the guilty
pleas. The parties agreed that once those corrections were made, the total of the
notional sentence components was 42 years, five months and 25 days. The judge
then said:
It is also appropriate to specifically articulate that from that would be deducted the agreed
time in custody of one year, three months and 29 days resulting in a notional term of 41
years, one month and 27 days.
7 This left a total of 41 years, one month and 27 days. The judge applied his
previous observations about the crushing nature of the total to the corrected total,
while observing that s 254(2a) of the Criminal Law Consolidation Act 1935 (SA)
(‘CLCA’) required that the sentence for escape custody be cumulative on any other
term of imprisonment. He then described the corrected sentence in the following
terms:
Accordingly, for all offences except the escape custody and those offences for which the
maximum penalty is a fine, namely the driving whilst unauthorised offences, there will be
a single sentence of 11 years, nine months imprisonment backdated to commence on
2 December 2020. For the escape custody offence, after the discount articulated on the
earlier occasion, there will be a term of three years and three months imprisonment which
must be served cumulatively. Those total the previously articulated term of 15 years. For
each of the drive whilst unauthorised offences there will be a conviction without penalty.
The non-parole period remains 12 years backdated to commence on 2 December 2020.
8 The period of one year, three months and 29 days that the judge deducted
from the initial total was referable to a period of one year and three months that
the applicant spent in custody between 5 May 2019 and 5 August 2020, and a
period of 29 days that he spent in custody between 2 November 2020 and
1 December 2020. Those periods were referable to the offending for which he was
sentenced. The important observation for present purposes is that the judge
deducted that total time from the notional total of the various sentences, rather than
doing so once he had reached the final total of 15 years.
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[2023] SASCA 71 The Court
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9 The applicant also spent 89 days on home detention bail. He breached that
bail, but the prosecution accepted that he was entitled to a reduction for the time
spent on home detention between 5 August 2020 and 26 September 2020, when he
first breached bail. That was a period of 52 days. The judge does not appear to
have given any credit for that period.
10 The judge backdated the final sentence to the date when the applicant was
taken into custody for the last time, being 2 December 2020.
11 The following table sets out the offences for which the applicant was to be
sentenced, the maximum penalties and a brief description of the offending. The
victims are referred to by their initials for convenience.
1 Unless otherwise specified, these are terms of imprisonment.
2 Criminal Law Consolidation Act 1935 (SA), s 86A(1).
3 Road Traffic Act 1961 (SA), s 45(2).
4 Criminal Law Consolidation Act 1935 (SA), s 137(a).
Count/
Victim
Offence Maximum
Penalty1
Brief Facts
DCCRM-20-277 dated 8 May 2020
1 / AU Drive or use
Motor Vehicle
without
Consent
2 years for first
offence or not
less than 3
months and not
more than 4
years for
subsequent
offence2
On 2 May 2019, the applicant took
and used a stolen Ford Laser without
consent.
2 Aggravated
Drive without
Due Care
1 year and
licence
disqualification
of not less than
6 months3
On 5 May 2019, at 2:30am, the
applicant was using the Ford Laser
when it collided with a parked grey
Ford Fairmont sedan.
3 /
MJR
Robbery 15 years4 On 5 May 2019, after exciting the
Ford Laser, the applicant then
flagged down a passing vehicle
driven by MJR. MJR initially agreed
to drive the applicant but became
concerned that he was involved in
some kind of illegality when a
witness began recording what was
occurring.
MJR stopped and refused to go any
further, removing his keys from the
ignition and exiting the vehicle. The
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[2023] SASCA 71 The Court
4
5 Summary Offences Act 1953 (SA), s 17(a).
6 Motor Vehicles Act 1959 (SA), s 91(5).
7 Bail Act 1985 (SA), s 17(1).
applicant alighted the vehicle and
advanced on him, demanding his
keys. When he refused, the applicant
attacked him, initially punching him
three times to the head and making
threats as if to draw a knife on him.
The applicant punched him, bringing
him to the ground. The applicant
continued to threaten him, wrestling
him whilst on the ground until he
was able to force the keys from his
hands, thus enabling the applicant to
rob MJR of his car and depart.
4 Unlawfully on
Premises
2 years where
the unlawful
purpose is
punishable by
a maximum
term of 2 years
or more5
On 5 May 2019, at 4am, the
applicant was detected knocking on
a window at a house in Leah Street,
Forestville, in an attempt to secure
the vehicle on the property. He then
climbed onto the roof of a property
to evade the police.
5 Unlawfully on
Premises
2 years where
the unlawful
purpose is
punishable by
a maximum
term of 2 years
or more
DCRRM-21-866 dated 6 May 2019
1 Drive under
Disqualification
or Suspension
6 months for
first offence or
2 years for
subsequent
offence6
The applicant’s conduct on 5 May
2019, also comprised of driving
under disqualification as the
applicant was, at that time,
disqualified from holding or
obtaining a driver's licence.
DCCRM-21-1609 dated 12 July 2021
1 Fail to Comply
with Bail
Agreement
$10,000 or 2
years7
On 5 August 2020, shortly after
being released on home detention,
the applicant commenced breaching
that bail.
On 26 September 2020, he was not
present as required at his bail
2 Fail to Comply
with Bail
Agreement
$10,000 or 2
years
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[2023] SASCA 71 The Court
5
8 Motor Vehicles Act 1959 (SA), s 74(1).
9 Criminal Law Consolidation Act 1935 (SA), s 134(a).
address, nor was he present as
required on 8 October 2020 when a
check was conducted. On that day, a
female at the premises advised the
Intensive Compliance Officer that he
had not been there since 28
September 2020.
3 Drive or use
Motor Vehicle
without
Authorisation
$1,2508 During the incident of aggravated
serious criminal trespass and theft
on M & AF on 6 October 2020 (see
below), the applicant was driving
unauthorised at the time.
4 Drive or use
Motor Vehicle
without
Authorisation
$1,250 On 14 October 2020, police
observed the applicant stationary on
Hounslow Avenue, Cowandilla and
directed him to stop. He failed to do
so. He accelerated away from police.
5 Drive or use
Motor Vehicle
without
Authorisation
$1,250 On 14 October 2020, when the
applicant made off without payment
(see below), the applicant was
driving unauthorised at the time.
6 Drive or use
Motor Vehicle
Without
Authorisation
$1,250 On 17 October 2020, when the
applicant failed to stop and give
particulars (see below), he was
driving unauthorised at the time.
7 / ZE Theft 10 years9 On 28 September 2020, the
applicant broke into ZE’s home at
Wattle Park, where numerous items
of jewellery and other property were
taken. Three of those items, a Louis
Vuitton suitcase, a hard orange
suitcase and Louis Vuitton handbag
were found in the abandoned Toyota
Corolla used by the applicant. Three
passports, a bracelet, earrings, a
necklace and other items of silver
and gold jewellery stolen from ZE
were later located at Mawson Lakes
during the applicant’s arrest.
8 / JP Theft 10 years Sometime between 5 and 8 October
2020, the applicant broke into JP’s
home, taking numerous items of
jewellery and other property. Two
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[2023] SASCA 71 The Court
6
jewellery boxes, a bank card, a black
case with a UK pound pendant, a
gold watch, a gold square-faced
watch and numerous other items of
jewellery were subsequently located
either in the Toyota Corolla or in the
applicant’s possession at Mawson
Lakes.
9 / VB Theft 10 years On 9 October 2020, the applicant
broke in VB’s house in Greenhill,
from which numerous items were
stolen. Two bank cards and a
Microsoft tablet and charging cable
were subsequently located in the
abandoned Toyota Corolla at Royal
Park. He was also found in
possession of a set of her car keys
during his arrest at Mawson Lakes.
10 / PE Theft 10 years Sometime between 11 and 12
October 2020, the applicant broke
into PE’s home. Cards in PE’s name
and a seed pearl necklace were
located in the abandoned Toyota
Corolla. Watches belonging to PE
were located in the applicant’s
possession at Mawson Lakes during
his arrest.
11 /
CO
Theft 10 years On 9 October 2020, CO’s house at
Greenhill was broken into and her
Apple iPad was stolen. It was later
located in the abandoned Toyota
Corolla at Royal Park.
12 Drive or use
Motor Vehicle
without
Authorisation
$1,250 On 22 October, when the applicant
was driving the Toyota HiLux (see
below), he was not authorised to do
so.
13 Drive or use
Motor Vehicle
without
Authorisation
$1,250 When unlawfully on a property at
Hillside Road, Springfield on 27
October 2020 (see below), the
applicant was driving a vehicle
which he was not authorised to
drive.
18 /
LW
Theft 10 years On 22 October 2020, the applicant
broke into LW’s house in Fullham
Gardens. She identified various
items of jewellery, an Apple iPad
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[2023] SASCA 71 The Court
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10 Criminal Law Consolidation Act 1935 (SA), s 170(1)(b).
11 Criminal Law Consolidation Act 1935 (SA), s 144(1).
with keyboard and an Apple Mac
Book Pro located in the applicant’s
possession at Mawson Lakes on 2
November 2020.
19 /
RK
Theft 10 years On 28 October 2020, the applicant
broke into RK’s home. Her car was
taken, together with numerous
pieces of jewellery and other items.
Police located her car keys, a Ralph
Lauren backpack, her Apple iPad, a
Mercedes bag and over 100 pieces
of property belonging to her in the
applicant’s possession when he was
arrested at Mawson Lakes.
20 /
AA
Theft 10 years Also taken from RK’s house on 28
October 2020 was a significant
amount of property owned by her
daughter AA. The applicant was
located with her gold bracelet, Apple
iWatch, Apple Mac Book Pro,
Apple iPhone, purse, passport and a
number of items of her jewellery
during his arrest.
DCCRM-21-1739 dated 2 July 2021
1 / M
& AF
Aggravated
Serious
Criminal
Trespass in a
Place of
Residence
Life10 On 6 October 2020, at 3:15pm, the
applicant smashed his way into the
house of M & A F. MF was in the
shower but hearing noises, she
walked into the hallway to find the
applicant present. He decamped the
house with about $350 worth of
property and a passport, together
with the keys to the house and the
family's vehicle.
2 / M
& AF
Theft 10 years
3 /
HTL
Theft 10 years On 13 October 2020, the applicant
stole a number plate off a grey
Toyota Corolla sedan from HTL and
put the numberplate from a rental
vehicle onto his vehicle.
4 Make off
without
Payment
2 years11 On 14 October 2020, the applicant
filled the vehicle up with petrol to
the value of $42.37 at the Caltex
service station on North East Road,
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8
12 Criminal Law Consolidation Act 1935 (SA), s 170(1)(a).
13 Road Traffic (Road Rules—Ancillary and Miscellaneous Provisions) Regulations 2014 (SA), r 67(c).
St Agnes. He made off without
payment.
5 / AR Serious
Criminal
Trespass in a
place of
Residence
15 years12 On 15 October 2020, AR was
alerted by an alarm relayed to her by
her security company and she
returned home. The applicant stole
some $58,266 worth of property
from AR, including a significant
quantity of jewellery, boxes, a scarf
and watch. AR witnessed him drive
away from the house at high speed.
6 / AR Theft 10 years
7 Fail to Stop and
give Particulars
at Crash
$2,50013 On 17 October 2020, the applicant
crashed the Toyota Corolla he was
driving and left the scene of the
accident before police could arrive.
He then attempted to pay the owner
of that car not to report the matter to
police.
8 / JY Theft 10 years On 14 October 2020, the applicant
stole further numberplates from a
green Toyota Camry parked in its
owner's driveway at Emerson Grove,
Tranmere. He attached the earlier
stolen numberplates to the Camry.
These numberplates were eventually
located attached to a Toyota Camry
abandoned at Royal.
10 /
GP
Theft 10 years On 22 October 2020, the applicant
took GP’s grey Toyota HiLux from
his property in rural Concordia.
Shortly afterwards, using a bank
card he had just stolen from the
property, the applicant purchased
$76 worth of fuel from the Caltex
Bolivar service station.
11 /
TH
Serious
Criminal
Trespass in a
Place of
Residence
15 years On 22 October 2020, the applicant
drove the Toyota HiLux to TH’s
property and smashed his way into
her house. She noticed a fire safe
containing personal documents was
missing, as were cufflinks and
toiletries, together with items of
jewellery and six passports. These
12 /
TH
Theft 10 years
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[2023] SASCA 71 The Court
9
were ultimately located in the
applicant’s possession during his
arrest.
13 /
TT
Serious
Criminal
Trespass in a
Place of
Residence
15 years On 23 October 2020, the applicant
drove the Toyota HiLux to TT’s
property Wynn Vale, damaging the
house as he broke in, and then
ransacking the property. He took
multiple items from her, including
passports, various items of
jewellery, a Marc Jacobs watch, an
Apple iPhone and iPad, basketball
championship rings, a Nike
backpack and other property. Only
some of that property was ultimately
located at the Mawson Lakes
address upon his arrest.
14 /TT Theft 10 years
15 / PJ Theft 10 years On 23 October 2020, the applicant
stole numberplates from PJ at his
Wynn Vale property, before
abandoning the Toyota HiLux at the
rear of a premises on Willochra
Road, Salisbury Plain, with damage
both to its windscreen and side
mirrors.
17 /
RL
Aggravated
Serious
Criminal
Trespass in a
Place of
Residence
Life On 26 October 2020, RL was having
a nap at about 3:15pm when he
heard someone enter his house. He
found the applicant holding a
spanner in his hand, demanding
money from him.
Note: further offending occurred
(see below).
19 /
FG
Theft 10 years On 26 October 2020, the applicant
stole a silver Ford Falcon station
wagon owned by a FG from an
Eastwood work site, using it for the
next two days. He had stolen a
number of items from that vehicle,
including FG’s ID, house keys and a
number of tools, which were
subsequently located in his
possession when arrested.
20 Unlawfully on
Premises
2 years where
the unlawful
On 27 October 2020, the applicant
entered a property at Hillside Road,
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[2023] SASCA 71 The Court
10
purpose is
punishable by
a maximum
term of 2 years
or more
Springfield, setting off an alarm. He
left the premises, returning to his
car. He left a fruit fly leaflet no
doubt to try and infer that his
conduct, captured on CCTV, was
not for an unlawful purpose. The
sentencing judge held that he was
plainly there to rob from that
property but was deterred by the
alarm.
21 /
RB
Theft 10 years Between 23 and 28 October 2020,
the applicant stole the numberplate
of RB who had parked his Subaru
Forester at Waite Campus in
Urrbrae.
22 /
SASA
Theft 10 years Between 23 and 28 October 2020,
the applicant stole the numberplates
from a Chrysler belonging to the
Scouts Association of South
Australia parked at Glen Osmond
Road, Frewville.
23 /
OH
Theft 10 years Between 23 and 28 October 2020,
the applicant stole the numberplates
from OH who had parked his Subaru
Forester at Orsmond Terrace,
Hindmarsh.
DCCRM-21-1785 dated 8 October 2021
1 Drive or use
Motor Vehicle
without
Consent
2 years for first
offence or not
less than 3
months and not
more than 4
years for
subsequent
offence
On 22 October 2020, the applicant
took GP’s grey Toyota HiLux from
his property in rural Concordia (see
above).
2 Drive or use
Motor Vehicle
without
Consent
2 years for first
offence or not
less than 3
months and not
more than 4
years for
subsequent
offence
Between 22 October 2020 and 3
November 2020, the applicant took
and illegally used a Subaru Forester
vehicle, the property of the
Department of Primary Industries
and Regions of South Australia.
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11
14 Criminal Law Consolidation Act 1935 (SA), s 20(3)(c).
15 Criminal Law Consolidation Act 1935 (SA), s 254(1).
3 Aggravated
Assault
4 years14 On 26 October 2020, after breaking
into RL’s house (see above), the
applicant demanded money. RL said
there was no money, whereupon the
applicant told him there was and that
he had better give it to him or he
would hit RL. RL continued to deny
that there was money. The applicant
subsequently assaulted him using the
spanner as a weapon. The applicant
hit him in the forearms, to the sides
of his body and ribs until he fell to
the ground.
The applicant then stole $1,500 in
cash, an ANZ Bank card, a black
leather wallet containing
identification materials, car keys and
stolen jewellery. Some of the items
and $220 were located at Mawson
Lakes upon his arrest.
4 Theft 10 years
DCCRM-21-107 dated 3 December 2020
1 Escape Custody 7 years15 Almost exactly four weeks after his
arrest, on 1 December 2020, the
applicant was in custody at the
Adelaide Remand Centre. At about
8:30am, he was conveyed to the
kitchen where he worked as a
kitchenhand. It was observed that
he brought an extra chef's shirt with
him. At about 10am, he went to the
toilet but did not return. After about
10 minutes, other prisoners seeking
to use the toilet got no response
when they knocked on the toilet
door.
The applicant had stacked two milk
crates on top of each other and
broken his way through the ceiling.
He then forced open metal air vents
on the external wall of the Remand
Centre to then use the extra chef's
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12 The next table repeats the list of offences in the same order and sets out the
sentence the judge fixed in respect of each, together with the processes of
accumulation and deduction that resulted in the total sentence of 41 years, 1 month
and 27 days. Where sentences were made concurrent, this is also shown. For
convenience of reference, the gradually accumulating total is shown in parentheses
as each sentence is added.
16 Unless otherwise specified, these are terms of imprisonment.
17 Unless otherwise specified, these are terms of imprisonment.
18 Unless otherwise specified, these are terms of imprisonment.
shirt as a makeshift rope to lower
himself into the street and escape.
Count/
Victim
Offence Maximum
Penalty16
Reduction
for Plea
Starting
Point17
Notional
Sentence18
DCCRM-20-277 dated 8 May 2020
1 / AU Drive or use
Motor Vehicle
without
Consent
2 years for first
offence or not
less than 3
months and not
more than 4
years for
subsequent
offence
20% 10 months 8 months
2 Aggravated
Drive without
Due Care
1 year and
licence
disqualification
of not less than
6 months
20% 5 months 4 months
(1 year)
3 /
MJR
Robbery 15 years N/A N/A 6 years
(7 years)
4 Unlawfully on
Premises
2 years where
the unlawful
purpose is
punishable by
a maximum
term of 2 years
or more
20% 5 months 4 months
(7 years
and 4
months)
5 Unlawfully on
Premises
2 years where
the unlawful
purpose is
punishable by
a maximum
-- 14 of 25 --
[2023] SASCA 71 The Court
13
term of 2 years
or more
Total 7 years
and 4
months
DCRRM-21-866 dated 6 May 2019
1 Drive under
Disqualification
or Suspension
6 months for
first offence or
2 years for
subsequent
offence
30% 5 months 3 months
and 16
days
(7 years, 7
months
and 16
days)
Total 7 years, 7
months
and 16
days
DCCRM-21-1609 dated 12 July 2021
1 Fail to Comply
with Bail
Agreement
$10,000 or 2
years
30% 10 months 7 months
(8 years, 2
months
and 16
days)
2 Fail to Comply
with Bail
Agreement
$10,000 or 2
years
3 Drive or use
Motor Vehicle
without
Authorisation
$1,250 N/A N/A Conviction
without
penalty
4 Drive or use
Motor Vehicle
without
Authorisation
$1,250 N/A N/A Conviction
without
penalty
5 Drive or use
Motor Vehicle
without
Authorisation
$1,250 N/A N/A Conviction
without
penalty
6 Drive or use
Motor Vehicle
Without
Authorisation
$1,250 N/A N/A Conviction
without
penalty
7 / ZE Theft 10 years 30% 2 years 1 year, 4
months
and 25
days
-- 15 of 25 --
[2023] SASCA 71 The Court
14
(9 years, 7
months
and 11
days)
8 / JP Theft 10 years 30% 2 years 1 year, 4
months
and 25
days
(11 years
and 6
days)
9 / VB Theft 10 years 30% 1 year and
6 months
1 year and
19 days
(12 years
and 25
days)
10 / PE Theft 10 years 30% 2 years 1 year, 4
months
and 25
days
(13 years,
5 months
and 20
days)
11 /
CO
Theft 10 years 30% 1 year and
6 months
1 year and
19 days
(14 years,
6 months
and 9
days)
12 Drive or use
Motor Vehicle
without
Authorisation
$1,250 N/A N/A Conviction
without
penalty
13 Drive or use
Motor Vehicle
without
Authorisation
$1,250 N/A N/A Conviction
without
penalty
18 /
LW
Theft 10 years 30% 1 year and
6 months
1 year and
19 days
-- 16 of 25 --
[2023] SASCA 71 The Court
15
(15 years,
6 months
and 28
days)
19 /
RK
Theft 10 years 30% 1 year and
6 months
1 year and
19 days
(16 years,
7 months
and 17
days)
20 /
AA
Theft 10 years 30% 1 year and
6 months
1 year and
19 days
(17 years,
8 months
and 6
days)
Total 17 years, 8
months
and 6 days
DCCRM-21-1739 dated 2 July 2021
1 / M
& AF
Aggravated
Serious
Criminal
Trespass in a
Place of
Residence
Life 15% 3 years, 6
months
2 years, 11
months
and 22
days
(20 years,
7 months
and 28
days)
2 / M
& AF
Theft 10 years
3 /
HTL
Theft 10 years 15% 5 months 4 months
and 8 days
(21 years
and 6
days)
4 Make off
without
Payment
2 years 15% 5 months 4 months
and 8 days
(21 years,
4 months
and 14
days)
5 / AR Serious
Criminal
15 years 15% 4 years
-- 17 of 25 --
[2023] SASCA 71 The Court
16
Trespass in a
place of
Residence
3 years, 4
months
and
25 days
(24 years,
9 months
and 9
days)
6 / AR Theft 10 years
7 Fail to Stop and
give Particulars
at Crash
$2,500 N/A N/A Conviction
without
penalty
8 / JY Theft 10 years 15% 5 months 4 months
and 8 days
(25 years,
1 month
and 17
days)
10 /
GP
Theft 10 years 15% 5 months 4 months
and 8 days
(25 years,
5 months
and 25
days)
11 /
TH
Serious
Criminal
Trespass in a
Place of
Residence
15 years 15% 3 years 2 years, 6
months
and 19
days
(28 years
and 14
days)
12 /
TH
Theft 10 years
13 /
TT
Serious
Criminal
Trespass in a
Place of
Residence
15 years 15% 3 years 2 years, 6
months
and 19
days
(30 years,
7 months
and 3
days)
14 /TT Theft 10 years
15 / PJ Theft 10 years 15% 5 months 4 months
and 8 days
-- 18 of 25 --
[2023] SASCA 71 The Court
17
(30 years,
11 months
and 11
days)
17 /
RL
Aggravated
Serious
Criminal
Trespass in a
Place of
Residence
Life 15% 3 years
and 6
months
2 years, 11
months
and 22
days
Concurrent with counts
3 and 4 on DCCRM-21-
1785. Notional sentence
of 4 years for all three
offences.
(34 years, 11 months
and 11 days)
19 /
FG
Theft 10 years 15% 1 year and
6 months
1 year, 3
months
and 10
days
(36 years,
2 months
and 21
days)
20 Unlawfully on
Premises
2 years where
the unlawful
purpose is
punishable by
a maximum
term of 2 years
or more
15% 1 year 10 months
and 7 days
(37 years
and 28
days)
21 /
RB
Theft 10 years 15% 5 months 4 months
and 8 days
(37 years,
5 months
and 6
days)
22 /
SASA
Theft 10 years 15% 5 months 4 months
and 8 days
(37 years,
9 months
and 14
days)
-- 19 of 25 --
[2023] SASCA 71 The Court
18
23 /
OH
Theft 10 years 15% 5 months 4 months
and 8 days
(38 years,
1 month
and 22
days)
Total 38 years, 1
month and
22 days
DCCRM-21-1785 dated 8 October 2021
1 Drive or use
Motor Vehicle
without
Consent
2 years for first
offence or not
less than 3
months and not
more than 4
years for
subsequent
offence
40% 1 year 7 months
and 7 days
(38 years,
8 months
and 29
days)
2 Drive or use
Motor Vehicle
without
Consent
2 years for first
offence or not
less than 3
months and not
more than 4
years for
subsequent
offence
40% 10 months 6 months
(39 years,
2 months
and 29
days)
3 Aggravated
Assault
4 years 40% 3 years 1 year, 9
months
and 18
days
4 Theft 10 years
Concurrent with Count
17 of DCCRM-21-
1739. Notional sentence
of 4 years for all three
offences.
Total 39 years, 2
months
and 29
days
DCCRM-21-107 dated 3 December 2020
1 Escape Custody 7 years 35% 5 years
(Served
cumulative
with all
3 years
and 3
months
-- 20 of 25 --
[2023] SASCA 71 The Court
19
The appeal
13 The applicant does not take issue with any of the starting points or the final
head sentence of 15 years. His complaint is that, notwithstanding that the judge
expressly deducted the time served in custody from the accumulated total of 42
years, five months and 29 days, he is left with a sense of grievance that this time
served was not taken into account as part of his punishment.
14 The complaint rested on two observations. First, the judge originally reached
a total notional sentence of 45 years, one month and 19 days. When the matter was
called on for corrections to be made, that total was reduced to 42 years, five months
and 25 days. However, there was no change to the final, 15-year head sentence.
15 Secondly, the applicant submitted that there was an air of unreality attached
to the deduction of one year, three months and 29 days from the notional starting
point when the final figure was set at 15 years. The impression remaining was, in
the applicant’s submission, that the time actually served had disappeared into the
notional sentences, with no impact on the time actually to be served.
16 In R v Place,22 the Court of Criminal Appeal held that a sentencing judge had
erred by applying the principal of totality to a provisional sentence before taking
into account circumstances of mitigation, including a plea of guilty.23 In
19 The sentencing judge discounted this period from the total sentence, the complaint of which is subject
of this appeal. The resulting notional head sentence was 41 years, one month and 27 days.
20 For all offences except escaping custody and driving whilst unauthorised, a single sentence of 11 years
and nine months’ imprisonment was imposed. This in addition to the offence of escaping custody
resulted in a final sentence of 15 years’ imprisonment.
21 Being four-fifths of the head sentence, as mandated by s 54(1)(b) of the Sentencing Act 2017 (SA).
22 (2002) 81 SASR 395.
23 R v Place (2002) 81 SASR 395 at [90].
other
offences)
(42 years,
5 months
and 29
days)
Total 42 years, 5
months
and 29
days
Credit for time served in custody 1 year, 3
months
and 29
days19
Resulting total 41 years, 1
month and
27 days
Final sentence 15 years20
Non parole period 12 years21
-- 21 of 25 --
[2023] SASCA 71 The Court
20
resentencing, the Court imposed notional sentences for the separate offences,
reduced each on account of the relevant guilty pleas and accumulated the resulting
sentences. It then reduced the consequent period for totality, following which it
deducted an appropriate period on account of time spent in custody.24
17 The applicant submitted that the sentencing judge should have taken a similar
approach in this case, as it would have given him certainty that the credit was
allowed against his actual sentence. Ordinarily, that certainty will be achieved by
backdating the commencement of the sentence to the time when a defendant was
taken into custody. The sentence was backdated in this case. However, the period
of one year, three months and 29 days that the applicant served before he was taken
into custody for the last time was also referable to the offending. His complaint
was that while expressly referred to, the effect of this discount was lost in the steps
taken before the final reduction. That is illustrated by the fact that the correction
to the notional total resulted in no difference to the ultimate sentence.
18 In Ribbon v The Queen,25 the applicant complained that the sentencing judge
failed to give him full credit for time spent in custody prior to sentence when fixing
the non-parole period. The judge had fixed the non-parole period after making the
reduction to the head sentence for time spent in custody. The Court held that there
was no error, but discouraged that approach:26
Whilst we consider there was ultimately no error in the approach taken by the sentencing
Judge in reducing the sentence for time served or in the non-parole period fixed, it is not
the preferable approach. In adopting this approach, the sentencing Judge did not directly
refer to the exact period of time served in custody when fixing the non-parole period. Had
the sentencing Judge adopted the alternative approach of reducing both the head sentence
and the non-parole period for time served, her Honour would have specifically referred to
the precise period of time served and the complaint made by the appellant could not have
arisen. That would have ensured transparency in the sentencing process and removed any
perception in the appellant’s mind that the time spent in custody was not properly reflected
in the fixing of both the head sentence and non-parole period. It is important to reiterate
that whilst there is no error in the approach taken by the sentencing Judge, it is not an
advisable approach as it can lead to an opacity in the sentencing process and a sense of
grievance on behalf of a defendant. It is an approach which this Court discourages.
19 The Court in that case had regard to R v Malesevic,27 where the Court had
held that approach to be permissible, notwithstanding that a lesser credit may
thereby be given against the non-parole period for time spent in custody and on
home detention bail.28
20 In the present case, the concern is with a want of certainty that the time spent
in custody has been applied against the head sentence itself. The Court in Ribbon
24 R v Place (2002) 81 SASR 395 at [113]-[114].
25 [2022] SASCA 15.
26 Ribbon v The Queen [2022] SASCA 15 at [40].
27 [1999] SASC 321; (1999) 204 LSJS 32.
28 R v Malesevic [1999] SASC 321 at [37]-[39]; (1999) 204 LSJS 32 at 5-6.
-- 22 of 25 --
[2023] SASCA 71 The Court
21
also referred to the decision of the Court of Criminal Appeal in R v Tsonis.29
Relevantly, it said:30
In R v Tsonis, the Court of Criminal Appeal considered the operation of s 30(2) of the
Criminal Law (Sentencing) Act 1988 (SA), the predecessor to s 44(2) of the Sentencing Act
which is identical in its terms.31 The Court said that whilst the section gives a sentencing
judge a discretion as to the extent of any credit given for time served in custody, a practice
has developed to give a defendant full credit for time served in custody.32 The Court set
out the policy reasons for this practice.33 The Court referred to this practice as having been
described in earlier authorities ‘as the usual practice, the typical practice, and an almost
universal practice’.34 Further, when credit is given for time served in custody, it is generally
calculated to the day, although mathematical precision is not necessarily required.35
The Court said that where a sentencing judge does decide to give less than full credit there
must be good reason to do so.36 In those circumstances it is incumbent upon the judge to
disclose the amount of credit given for time served in custody and the reason or reasons for
giving less than full credit.37
(Footnotes in original)
21 There remains a discretion under s 44(2) of the Sentencing Act in respect of
the deduction to be given for time spent in custody referable to the offending, albeit
that there must be good reason to depart from giving full credit. In the present case,
while the judge announced that full credit would be given for the period served in
custody, it is not clear what effect that credit had on the sentence ultimately
imposed. To this extent, the sentence is opaque. The applicant cannot know what
effect, if any, the announced reduction had on the time he is to spend in custody.
22 As senior counsel for the applicant submitted, this difficulty can be simply
illustrated. The final head sentence of 15 years was backdated to 2 December 2020,
when the applicant was last taken into custody. To serve a 15-year head sentence
from that date means that in effect, he is required to serve a total period of 16 years,
three months and 29 days, once the earlier periods in custody, referable to the
offending, are also taken into account. That was not the head sentence announced
by the sentencing judge. Further, the non-parole period of 12 years, necessarily
four-fifths of 15 years, operates in effect as a non-parole period of 13 years, three
29 (2018) 131 SASR 416.
30 R v Ribbon [2022] SASCA 15 at [28]-[29].
31 R v Tsonis (2018) 131 SASR 416.
32 R v Tsonis (2018) 131 SASR 416 at [69] per Lovell, Doyle and Hinton JJ.
33 R v Tsonis (2018) 131 SASR 416 at [88] per Lovell, Doyle and Hinton JJ.
34 R v Tsonis (2018) 131 SASR 416 at [69] per Lovell, Doyle and Hinton JJ citing Trotta v The Police
[2008] SASC 16 per David J and R v Deng [2015] SASCFC 176 at [11] per Blue J, at [42] per Nicholson
J (with whom Kelly J agreed).
35 R v Tsonis (2018) 131 SASR 416 at [69] per Lovell, Doyle and Hinton JJ citing R v Malesevic [1999]
SASC 321 at [35]-[47]; (1999) 204 LSJS 32 at 5-8 per Doyle CJ (with whom Bleby and Wicks JJ
agreed) and R v Deng [2015] SASCFC 176 at [11] per Blue J, at [42] per Nicholson J (with whom Kelly
J agreed).
36 R v Tsonis (2018) 131 SASR 416 at [75] per Lovell, Doyle and Hinton JJ.
37 R v Tsonis (2018) 131 SASR 416 at [75] per Lovell, Doyle and Hinton JJ.
-- 23 of 25 --
[2023] SASCA 71 The Court
22
months and 29 days. That is a little in excess of four fifths of the effective head
sentence of 16 years, three months and 29 days.
23 We accept that the judge erred in giving credit for time spent in custody
against the notional accumulated total, prior to reducing that total to the final,
proportionate sentence. We propose to grant permission to appeal, allow the
appeal, quash the sentence and resentence the applicant.
Resentencing
24 There was no argument against the appropriateness of a head sentence of 15
years. The applicant has a long and dispiriting antecedent history. This includes
relevant convictions as a youth and as an adult. He had a highly disrupted
childhood. He was exposed to domestic violence and alcoholism. He was made
subject to a welfare order at the age of 11 and was required to live in an
accommodation house in Darwin. He was sexually abused there and introduced to
amphetamine.
25 The applicant began using cannabis from the age of 13 and
methamphetamine from the age of 15. He has a long-term addiction to
methamphetamine, which drove both his previous offending and the offending
currently under consideration. From the age of 13, he has been in a cycle of
offending and incarceration. He has frequently been held in high security
conditions, including solitary confinement. He is polite in prison and compliant
with prison rules and regimes. He has not been involved in any incidents in
custody. The last of the offences under consideration was, however, escape
custody. When he was arrested following his escape from the Adelaide Remand
Centre, he sustained significant injuries. He was initially placed in the Infirmary at
Yatala and then G Division.
26 The applicant has two children, aged 11 and two. He has the support of the
children’s mother, who visits him in custody on a regular basis.
27 The applicant tendered a letter of apology. He has, however, tendered similar
letters of apology in the past, yet continued to offend.
28 We propose to resentence the applicant to one penalty for all the offences,
pursuant to s 26(1) of the Sentencing Act. Having regard to the Court’s obligation
under s 26(2a) of that Act, we indicate that we would have imposed each of the
notional head sentences that the sentencing judge imposed, as set out above, taking
into account the various reductions for the guilty pleas where applicable. We also
indicate that we would have ordered that those sentences the judge ordered should
be served concurrently or partially concurrently, should be served concurrently or
partially concurrently.
29 Much of this offending constituted an ongoing course of conduct, albeit one
that was defined by repeated, separate criminal incursions. There is also a need to
avoid a disproportionate sentence with no scope for rehabilitation. We also indicate
-- 24 of 25 --
[2023] SASCA 71 The Court
23
that it would have been appropriate to then provide for further concurrency and
partial concurrency as between the offences, although not in respect of the offence
of escape lawful custody, given s 254(2a) of the CLCA.
30 As we are proceeding under s 26(1) of the Sentencing Act, however, it is not
necessary to identify the extent of further concurrency and partial concurrency that
we would apply as between the various sentences. Rather, having identified the
sentence we would impose in respect of each offence, and having regard to the
matters discussed above, we would impose, pursuant to s 26(1), a single head
sentence of 15 years’ imprisonment. We reach that head sentence without any
deduction for time already served in custody referable to this suite of offending.
31 We then deduct from that head sentence a period of one year, three months
and 29 days. This results in a head sentence of 13 years, eight months and one day.
We deduct a further 31 days in respect of the 52-day period spent on home
detention between 5 August 2020 and 26 September 2020.
32 That results in a head sentence of 13 years and seven months. It is necessary
to fix a non-parole period of at least four-fifths of the head sentence, as the
applicant is a serious repeat offender. We fix a non-parole period of 10 years, 10
months and 12 days. Stepping back and considering this sentence against the whole
of the offending and the applicant’s history and personal circumstances, we are
satisfied that this is an appropriate sentence.
33 Both the head sentence and the non-parole period are backdated to commence
on 2 December 2020.
34 The orders of the Court are:
1. The District Court sentence is set aside.
2. The appellant is resentenced to imprisonment for 13 years and seven
months.
3. A non-parole period of 10 years, 10 months and 12 days is fixed.
35 The sentence will operate from 2 December 2020.
-- 25 of 25 --