Daley v The King

[2023] SASCA 29

Supreme Court of South Australia

(Court of Appeal: Criminal)

DALEY v THE KING

[2023] SASCA 29

Judgment of the Court of Appeal  

(The Honourable President Livesey and the Honourable Justice Nicholson)

21 March 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY

The appellant applied for permission to appeal against a sentence of 10 months’ imprisonment which was suspended upon entry into a two-year bond to be of good behaviour.  That sentence was imposed following a trial before a jury in which the appellant was acquitted of rape but convicted on a charge of assault causing harm for which the maximum penalty was imprisonment for three years. 

The application for permission raised three grounds of appeal.  The first was that the sentence was manifestly excessive, the second was that the sentencing judge erred in recording a conviction and finally, the sentencing judge erred in describing the appellant’s behaviour towards the victim as “extremely violent”.

The Court held (granting permission to appeal but dismissing the appeal):

1. The sentence in this case might be thought severe given the appellant’s very favourable personal circumstances but it cannot be described as manifestly excessive, still less unjust.

2. The power to refrain from recording a conviction is to be exercised sparingly

3. The seriousness of the offending, the need for deterrence and the public interest in recording a conviction outweighed the appellant’s favourable personal circumstances and the likely hardship associated with recording a conviction.

4. The sentencing judge did not err in describing the appellant’s behaviour towards the victim as “extremely violent”.

Criminal Law Consolidation Act 1935 (SA) s 20(4); Sentencing Act 2017 (SA) s 97, referred to.
Bugmy v The Queen (2013) 249 CLR 571; Goldsworthy v Police [2016] SASC 85; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Lee v The State of Western Australia [2022] WASCA 137; R v Hoffman [2017] SASCFC 15; R v Lutze (2014) 121 SASR 144; R v Stubberfield (2010) 106 SASR 91; R v Taylor; R v Teekens [2022] SASCA 79; R v Yousef (2005) 155 A Crim R 134; Sharrad v Police [2015] SASC 26; Sims v Police (2000) 30 MVR 524; Tazebe v Police [2013] SASC 194, considered.

DALEY v THE KING
[2023] SASCA 29

Court of Appeal – Criminal:  Livesey P and Nicholson AJA

Introduction

1. The appellant applied for permission to appeal against a sentence of 10 months’ imprisonment which was suspended upon entry into a two-year bond to be of good behaviour. That sentence was imposed following a trial before a jury in which the appellant was acquitted of rape but convicted on a charge of assault causing harm, contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty was imprisonment for three years.

2. The application for permission raises three grounds of appeal.  The first is that…