Adeseolu v The King - [2022] SASCA 113

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ADESEOLU v THE KING
[2022] SASCA 113
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
31 October 2022
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - OTHER FACTORS - CIRCUMSTANCES OR CONDITIONS OF IMPRISONMENT
Application for permission to appeal against sentence.
The applicant was convicted of one count of theft, contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA).
Through a series of transactions over the period 8 to 15 May 2019, the applicant transferred $64,872.51 in funds belonging to the Victorian Country Fire Authority through a series of bank accounts held either in the applicant’s name or in the name of two former partners of the applicant. In doing so, he dealt with the funds dishonestly and without regard for the proprietary rights of the true owner of those funds.
The applicant was sentenced in the Magistrates Court. The sentence, which was reduced on account of the applicant’s guilty plea from a notional starting point of seven months, was five months and 29 days imprisonment. The Magistrate partially suspended this sentence, ordering that the applicant serve one month and 29 days of the sentence of imprisonment in prison, and suspending the balance upon his entering into a good behaviour bond.
The applicant seeks permission to appeal against his sentence on two grounds. The first ground complained that the sentence imposed was manifestly excess. By his second ground, the applicant complained that the Magistrate erred in not giving consideration to ordering that the sentence be served on home detention, or in the alternative in giving inadequate reasons for declining to order that it be served on home detention.
Held, per the Court, granting permission to appeal but dismissing the appeal:
1. The Magistrate erred in not making reference to the possibility of home detention in determining that a partially suspended sentence was the most appropriate sentence in the circumstances.
2. Notwithstanding the Magistrate’s process error, this is a case where the Court declines to interfere with the sentence below on the basis that this Court would, in resentencing, not have imposed any lesser sentence.
Criminal Law Consolidation Act 1935 (SA) s 134; Criminal Procedure Act 1921 (SA) ss 5, 116; Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) ss 10, 52, 71, 96, referred to.
BRK v Police [2020] SASC 116; Kentwell v R (2014) 252 CLR 601; Moran v The Queen (2020) 136 SASR 504; R v Dell (2016) 126 SASR 571; R v Filipponi (2016) 126 SASR 464; R v Hosking (2017) 128 SASR 37; R v Jurisic (1998) 45 NSWLR 209; Siropoulos v Police [2019] SASC 127; Stenecker v Police (2014) 120 SASR 18, considered.

ADESEOLU v THE KING
[2022] SASCA…

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 Adeseolu v The King

Details

AGLC: Adeseolu v The King [2022] SASCA 113
Case: [2022] SASCA 113
Decision Date: 31 October 2022

CaseChat Overview and Summary

The applicant, Adeseolu, appealed against a sentence imposed by a Magistrate. The dispute concerned the Magistrate's consideration of sentencing options, specifically home detention versus a partially suspended sentence of imprisonment. The appeal was heard by Doyle, Bleby, and David JJ.

The central legal issue before the court was whether the sentencing Magistrate erred by failing to give adequate consideration to the defence's submission that home detention was an appropriate sentencing option. The applicant argued that the Magistrate should have either expressly considered home detention and provided reasons for rejecting it in favour of a partially suspended sentence, or that the Magistrate's decision to impose a partially suspended sentence implicitly meant home detention was not considered. The respondent contended that home detention was only an option after suspension was rejected, and therefore, the Magistrate's decision to partially suspend the sentence meant there was no occasion to consider home detention.

The Court of Appeal considered the principles of sentencing, noting that a sentencing judge must state the sentence imposed and the reasons for it, with a primary purpose being to explain the sentence to the defendant and to facilitate appellate review. However, the Court also acknowledged that sentencing remarks need not be exhaustive and can be brief, provided they refer to key submissions and offer a short explanation for their acceptance or rejection. The Court found that the Magistrate had not squarely addressed the submission for home detention, making only a passing reference to it as a prosecution-acknowledged option. The Court concluded that the Magistrate's decision to partially suspend the sentence did not, in itself, demonstrate that home detention had been considered and rejected.

The Court ordered that the appeal be allowed, the sentence be set aside, and the matter be remitted to the Magistrate for re-sentencing.

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

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Ratio Decidendi

Legal Principle Established

It can thus be seen that, having determined that it was appropriate to partially suspend the applicant’s sentence of imprisonment, the Magistrate did not squarely address the defendant’s submission that the Court should order that his sentence be served on home detention. Indeed, the only mention the Magistrate made of home detention was in the first paragraph of the above extract from his sentencing remarks, being a passing reference to the prosecution’s acknowledgment that it was a sentencing option that was available to the Magistrate.Consideration For reasons which will become apparent, it is convenient to commence by addressing Ground 2. The essence of the applicant’s argument under this ground is that, in circumstances where defence counsel contends that home detention is an appropriate sentencing option, it is incumbent upon the sentencing judge to give consideration to that submission before concluding that it is appropriate to impose a partially suspended sentence of imprisonment (a corollary of which will be, of course, that some part of the sentence will need to be served in prison rather than on home detention). The applicant argues that the sentencing judge in the present case erred in failing to consider home detention, or in the alternative, if he did consider it, in failing to give any reasons for rejecting that sentencing option in favour of the more onerous option of a partially suspended sentence of imprisonment. The respondent’s argument in response is that there was no need for the sentencing judge to have expressly addressed the issue of home detention; that on a proper interpretation of s 71(1)(b) of the Sentencing Act, home detention only becomes an available sentencing option once the sentencing judge has rejected suspension (whether full or partial), with the result that, because the judge considered it was appropriate to partially suspend the applicant’s sentence, there was no occasion in the present case for his Honour to have given any direct consideration to home detention. Alternatively, it was argued that even though his Honour did not mention home detention, his reasons for rejecting it were apparent from a reading of the transcript of sentencing submissions and the Magistrate’s sentencing remarks. In assessing these competing submissions, it is useful to commence with some basic principles governing the sentencing exercise. Under s 19(1) of the Sentencing Act, the court must “state the sentence that it is imposing … and its reasons for imposing that sentence”. A primary purpose of sentencing remarks is to provide a defendant with an explanation for the sentence that is imposed. Another is to enable this Court to undertake its appellate function. However, it is trite that sentencing remarks may be brief and to the point, and need not contain reference to, let alone a detailed explanation of, every issue that arises during the sentencing process. It will ordinarily be sufficient that they contain some reference to the key submissions advanced by the parties, and some short explanation for the acceptance or rejection of those submissions.