Buckmaster v The King - [2022] SASCA 101

Supreme Court of South Australia
(Court of Appeal: Criminal)
BUCKMASTER v THE KING
[2022] SASCA 101
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
29 September 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CONDUCT - THREATS
On 7 December 2021 the appellant pleaded guilty to two counts of aggravated threatening to cause harm, contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA). The offending was aggravated because the threats were made against the Commissioner of Police and a sitting magistrate. On 15 February 2022, the appellant was sentenced by a judge of the District Court, sitting as a magistrate, to two years and two months’ imprisonment, with a non-parole period of nine months fixed.
The appellant appeals against his conviction on the ground that he pleaded guilty under duress from his legal advisors. The appellant seeks permission to appeal against his sentence on the grounds that the sentencing judge erred in imposing a custodial sentence and that his sentence is manifestly excessive.
Conviction Appeal
Held (the Court) dismissing the conviction appeal:
1.The appellant was not subjected to any illegitimate pressure, let alone duress, before or at the time he entered his pleas of guilty to the charges the subject of the appeal.
2.There is no basis to find that the entry of guilty pleas was made by the appellant other than in the exercise of a free choice made with the benefit of competent legal advice.
3.There has been no miscarriage of justice.
Sentence Appeal
Held (the Court) refusing permission to appeal against sentence:
1.The judge did not err in imposing a custodial sentence.
2.It is not reasonably arguable that the sentence was excessive or unjust.

Criminal Law Consolidation Act 1935 (SA) s 19(2); Sentencing Act 2017 (SA) s 96; Joint Criminal Rules 2022 (SA) r 192.2; Magistrates Act 1983 (SA) s 22; Magistrates Court Act 1991 (SA) s 42, referred to.
Attorney-General v Thamm (1991) 57 SASR 83; Le Cornu v Thomas (2019) 134 SASR 421; MacFarlane v The Queen [2022] SASCA 46; Meissner v The Queen (1995) 184 CLR 132; Police and Department for Correctional Services v Mahon [2022] SASCA 76; R v Collins [2018] SASCFC 97; R v Pugh (2005) 158 A Crim R 302, considered.

BUCKMASTER v THE KING
[2022] SASCA 101
Court of Appeal – Criminal: Livesey P and David JA
THE COURT:
Introduction

This is an appeal against conviction and an application for permission to appeal against sentence, both of which were dealt with in the Magistrates Court.
The conviction appeal is against two counts of aggravated threatening to cause harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty was imprisonment for 8 years.[1]
[1] Although the sentencing judge referred to 7…

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 Buckmaster v The King

Details

AGLC: Buckmaster v The King [2022] SASCA 101
Case: [2022] SASCA 101
Decision Date: 29 September 2022

CaseChat Overview and Summary

The appeal concerned a conviction recorded against the appellant, Buckmaster, following a guilty plea. The dispute before the Court of Appeal of Western Australia was whether the sentence imposed was excessive or unjust.

The legal issues before the Court were whether the sentencing judge erred in fixing the starting point for the sentence, and whether the non-parole period was excessive or unjust.

The Court found that the starting point of two years and six months for the sentence was not reasonably arguable as excessive or unjust. It noted that after a reduction for the guilty plea, the judge imposed a non-parole period of nine months, which was described as merciful. This period was intended to allow the appellant an extended period of supervised parole, which the judge considered beneficial to the community.

Consequently, the Court of Appeal dismissed the appeal against conviction and refused permission to appeal against the sentence.

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

In our view it cannot be said that it is reasonably arguable that the starting point of two years and six months was excessive or unjust. After reduction for the guilty pleas, the judge fixed what has rightly been described as a merciful non-parole period of nine months, recognising that it would be of benefit to the community if the appellant was afforded an extended period of time on parole under strict supervision.Conclusion In these circumstances, the appeal against conviction must be dismissed and permission to appeal against sentence must be refused.

Ratio Decidendi

Legal Principle Established

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