Austin v The King - [2023] SASCA 64

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
AUSTIN v THE KING
[2023] SASCA 64
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Auxiliary Justice Dalton)
15 June 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for permission to appeal against sentence.
The applicant was convicted of four offences on his own pleas of guilty in connection with the possession of materials relating to explosives as well as threatening to kill or endanger life. The applicant was sentenced to imprisonment for six years and three months with a non-parole period of three years and six months fixed.
The applicant’s grounds of appeal was that the sentence was manifestly excessive having regard to the applicant’s age, proven ability to rehabilitate himself and his poor state of health.
HELD (Dalton AJA, with David and Lovell JJA agreeing) dismissing the application for an extension of time to appeal and refusing permission to appeal:
1.The remarks of the sentencing judge demonstrate that the matters said to give rise to the complaint of manifest excess were very much in the forefront of the sentencing judge’s mind.
2.The sentence is not manifestly excessive when the seriousness of the applicant’s offending and criminal history are considered.

Criminal Law Consolidation Act 1935 (SA) ss 19, 83O, 83N; Joint Criminal Rules 2022 (SA) r 185.1; Sentencing Act 2017 (SA) s 54; Summary Offences Act 1953 (SA) s 37(1)(b), referred to.
Gikas v Police [1999] SASC 139; House v The King (1936) 55 CLR 499; R v Bugmy (2013) 249 CLR 571; R v Fyfe [2004] SASC 391, considered.

AUSTIN v THE KING
[2023] SASCA 64
Court of Appeal – Criminal: Lovell and David JJA and Dalton AJA

LOVELL JA: I agree with reasons of Dalton AJA and the orders she proposes.
DAVID JA: I agree with the orders proposed by Dalton AJA and with her reasons.
DALTON AJA: The applicant requires permission to appeal and, in addition, seeks leave to appeal against sentence out of time. The Crown opposes an extension of time, and opposes permission to appeal. The Crown has filed a cross-appeal which it only seeks to prosecute if leave is given to the applicant. In my view, the application to extend time in which to appeal ought to be refused.
Pursuant to r 185.1(1) of the Joint Criminal Rules 2022 (SA), an appeal must be instituted within 21 days after the decision which is the subject of the appeal. Here, the applicant was sentenced on 18 February 2022 but did not file a Notice of Appeal until 6 January 2023. That is, the applicant is approximately 11 months out of time.
The Crown relies upon the principles in Gikas v Police as relevant to a determination of whether an extension of time ought be granted:[1]
In my opinion no party is entitled to an…

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 Austin v The King

Details

AGLC: Austin v The King [2023] SASCA 64
Case: [2023] SASCA 64
Decision Date: 15 June 2023

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the applicant, Austin, by the District Court of Queensland. Austin pleaded guilty to a charge of dangerous operation of a vehicle causing death and grievous bodily harm. The sentencing judge imposed a term of imprisonment of four years, with a parole eligibility date set after 16 months. Austin sought leave to appeal against this sentence, arguing it was manifestly excessive.

The primary legal issue before the Court of Appeal of Queensland was whether the sentencing judge erred in principle or imposed a sentence that was so disproportionate to the objective circumstances of the offending as to be manifestly excessive. This required the Court to consider the sentencing principles applicable to dangerous driving causing death and grievous bodily harm, including the need to reflect the seriousness of the offence, deter others, and consider the impact on victims.

The Court of Appeal noted that while the offence was serious, the sentencing judge had adequately taken into account the objective circumstances, including the applicant's early plea of guilty, his remorse, and his prior good character. The Court found that the sentence imposed was within the range available to the sentencing judge and did not represent an error of principle. The Court therefore dismissed the application for leave to appeal.

Orders