Ghassibe v The King - [2024] SASCA 78

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
GHASSIBE v THE KING
[2024] SASCA 78
Judgment of the Court of Appeal
(The Honourable Acting Chief Justice Livesey, the Honourable Justice Doyle and the Honourable Justice David)
27 June 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCE
Application for permission to appeal against sentence.

At around 6.47 pm on 1 April 2022, there was an altercation between the applicant and the deceased, Mr Brian Richardson, following an interaction between the vehicles in which they were travelling. The altercation occurred on West Terrace near the intersection with Currie Street. The culmination to this altercation was that the applicant kicked the deceased in the chin. As a result, the deceased fell backwards and struck his head on the roadway. This led to a brain injury from which he died on 12 April 2022.
Following a trial by judge alone, the applicant was found not guilty of murder but guilty of manslaughter, contrary to s 13 of the Criminal Law Consolidation Act 1935 (SA). The sentencing judge imposed a head sentence of six years and nine months, with a non-parole period of four years and six months.
The applicant sought permission to appeal his sentence on the ground that his sentence is, in all the circumstances, manifestly excessive. He contended that the sentencing judge should have found good reason to order a partially suspended sentence pursuant to s 96(5) of the Sentencing Act 2017 (SA).
Held (the Court) dismissing the application for permission to appeal against sentence:
1.Sentencing for the offence of manslaughter produces what may be regarded as the widest range of reasonably available sentencing outcomes. There is no yardstick for offending of this nature.
2.The favourable findings made by the sentencing judge demonstrated that he was anxious to arrive at a sentence which was appropriately proportionate to the circumstances of the offender as well as his offending.
3.The applicant failed to demonstrate that the sentence imposed in this case was other than a just sentence which fell within the range reasonably open to the sentencing judge in the exercise of his broad sentencing discretion.

Criminal Law Consolidation Act 1935 (SA) s 13; Sentencing Act 2017 (SA) s 96, referred to.
Birch v Fitzgerald (1975) 11 SASR 114; Bugmy v The Queen (2013) 249 CLR 571; Connaire v Austin [1988] TASSC 42; Hackett v The Queen [2021] SASCA 32; Henley v The King [2024] SASCA 52; House v The King (1936) 55 CLR 499; Lee v The State of Western Australia [2022] WASCA 137; R v Blacklidge (Court of Criminal Appeal of New South Wales, Gleeson CJ, 12 December 1995); R v Forbes (2005) 160 A Crim R 1; R v Ghassibe [2023] SASC 141; R v Lavender (2005) 222 CLR 67; R…

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 Ghassibe v The King

Details

AGLC: Ghassibe v The King [2024] SASCA 78
Case: [2024] SASCA 78
Decision Date: 27 June 2024

CaseChat Overview and Summary

The applicant, Ghassibe, sought permission to appeal against a sentence imposed by the sentencing judge. The respondent was The King. The dispute concerned the severity of the sentence handed down for an offence, with the applicant arguing it was manifestly excessive. The matter was heard by Acting Livesey CJ, Doyle and David JJ.

The central legal issue before the Court was whether the sentence imposed was demonstrably excessive, thereby warranting appellate intervention. The applicant's arguments essentially challenged the weight assigned by the sentencing judge to various factors relevant to sentencing.

The Court reasoned that arguments concerning the weight given to sentencing considerations typically do not provide a sufficient basis for an application for permission to appeal against sentence. The applicant had failed to demonstrate that the sentence was unjust or fell outside the reasonable exercise of the sentencing judge's broad discretion. The Court applied the principle that appellate courts are reluctant to interfere with sentencing decisions unless there is a clear error or the sentence is outside the available range.

Consequently, the Court concluded that it was not reasonably arguable that the sentence was manifestly excessive. The application for permission to appeal against sentence was therefore dismissed.

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

Indeed, the applicant’s arguments really amounted to criticisms about the weight given to various of the relevant sentencing considerations mentioned by the sentencing judge. At bottom, it was suggested that the sentencing judge should simply have arrived at a different outcome. Arguments about weight do not usually assist an application for permission to appeal against sentence.[17] The applicant has not demonstrated that the sentence imposed was other than a just sentence which fell within the range reasonably open to the sentencing judge in the exercise of his broad sentencing discretion.[18] [17] Lee v The State of Western Australia [2022] WASCA 137, [72]-[76].[18] Hackett v The Queen [2021] SASCA 32, [8].Conclusion It is not reasonably arguable that the sentence in this case was manifestly excessive. The application for permission to appeal should be refused. The order of the Court is that the application for permission to appeal against sentence is dismissed.

Ratio Decidendi

Legal Principle Established

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