Daley v The King

Case [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…

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Daley v The King [2023] SASCA 29
Case
[2023] SASCA 29
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CaseChat Overview and Summary

In *Daley v The King*, the appellant sought to appeal against a sentence imposed by the court below. The appeal was heard by Livesey P and Nicholson J.

The primary legal issue before the Court was whether the sentence imposed upon the appellant was manifestly excessive or unjust, thereby providing grounds for appellate interference.

The Court acknowledged that the sentence might appear severe when considering the appellant's favourable personal circumstances. However, it concluded that the sentence did not reach the threshold of being manifestly excessive or unjust. The Court granted the appellant permission to appeal, finding the grounds reasonably arguable, but ultimately dismissed the appeal.

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

Though the sentence in this case might be thought severe given the appellant’s very favourable personal circumstances, it cannot be described as manifestly excessive, still less unjust.Conclusion As has been seen, the appellant’s three proposed appeal grounds are each reasonably arguable. Accordingly, the appellant was granted permission to appeal but the appeal was dismissed on 14 March 2023.

Ratio Decidendi

Legal Principle Established

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