Hughes v The King - [2024] SASCA 110

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HUGHES v THE KING
[2024] SASCA 110
Judgment of the Court of Appeal
(The Honourable President Livesey and the Honourable Justice David)
9 September 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
The appellant sought permission to appeal against sentence. Following pleas of guilty, the appellant was sentenced for four offences. The appellant was sentenced on the incorrect maximum penalties for two of the offences.
There was a material overstatement of the maximum penalty applicable to one count and a material understatement of the maximum penalty applicable to another count.
It is conceded that the errors were material and vitiated the exercise of the sentencing discretion.

The respondent did not oppose an extension of time, nor that that the appellant be granted permission to appeal against sentence.
Held (by the Court) granting the appellant an extension of time, granting permission to appeal against sentence, allowing the appeal, setting aside the sentence and remitting the matter to the District Court for re-sentence:
1.Even where a single sentence is imposed for a number of offences under s 26 of the Sentencing Act 2017 (SA), a misapprehension as to one or more of the maximum penalties will usually be regarded as a material error, vitiating the exercise of sentencing discretion.
2.An overstatement of the maximum penalty is apt to create the perception that the offending is more serious than in fact it was. Observations made regarding an understatement of the maximum penalty.
3.Ordinarily, where all of the relevant material is available to the Court of Appeal, it will usually be in the interests of justice that this Court proceed to re-sentence. In this case, the most expeditious course is to remit these matters to the District Court so that they and any other pending matters may be addressed by the same judge at the same time.

Criminal Law Consolidation Act 1935 (SA) ss 86, 134, 137, 270A; Criminal Procedure Act 1921 (SA) ss 150, 158; Sentencing Act 2017 (SA) s 26, referred to.
Burgoyne v The King [2024] SASCA 61; Da Silva v The Queen [2020] SASCFC 66; Hall v The Queen (2020) 136 SASR 535; Hutchins v The Queen [2021] SASCA 31; Kentwell v The Queen (2014) 252 CLR 601; R v Carbone [2012] SASCFC 34; R v Nguyen [2007] SASC 83; R v Parisi (2003) 86 SASR 183, considered.

HUGHES v THE KING
[2024] SASCA 110
Court of Appeal – Criminal: Livesey P and David JA
THE COURT:
Introduction

This is an appeal against sentence. Following pleas of guilty, on 23 June 2023 the appellant was sentenced for four offences:
1.One count of attempted robbery, contrary to ss 137(1) and 270A of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty was 10 years’ imprisonment.
2.One count of commit theft by using force, contrary to s 137(1) of the CLCA (aggravated), for which the maximum penalty was life imprisonment. The circumstance of aggravation was that the appellant used or threatened to use force against a shop worker, being a person engaged in a prescribed occupation, and the appellant committed the offending knowing that the person was acting in the course of official duties.
3.One count of interfere with a motor vehicle without consent, contrary to s 86A(1) of the CLCA, for which the maximum penalty was two years’ imprisonment.
4.One count of theft, contrary to s 134 of the CLCA (being a basic offence), for which the maximum penalty was 10 years’ imprisonment.
As will be seen, the appellant was sentenced on the erroneous basis that the maximum penalty for the first count was 12 years, and the maximum penalty for the fourth was two years’ imprisonment.
Although the sentencing judge indicated the notional or starting sentence for each offence before imposing a single sentence, it is conceded that these errors were each material, and they vitiated the exercise of sentencing discretion.
It is common ground that the sentence should be set aside, and the matter remitted to the District Court for re-sentence. For the following reasons, the appeal will be allowed and the matter remitted.
The sentence imposed by the sentencing judge
For the first count the sentencing judge commenced with a starting point of two years’ imprisonment. For the second, his Honour adopted a starting point of four years’ imprisonment. For the third and fourth counts the sentencing judge adopted a starting point for both of two months’ imprisonment.
After allowing for reductions on account of the appellant’s pleas of five per cent for the first count, 15 per cent for the second and 30 per cent for the third and fourth counts, a single sentence for all offending was imposed pursuant to s 26 of the Sentencing Act 2017 (SA) of four years and six months’ imprisonment. A non‑parole period of two years and three months was fixed.
After credit was given for one year and 11 days spent in custody, reducing the sentence to three years, five months and 19 days, the sentencing judge fixed a non-parole period of one year, two months and 19 days.
That sentence was suspended on condition that the appellant enter into a bond to be of good behaviour for three years. The bond was made subject to strict supervision as well as conditions preventing the consumption of drugs and alcohol. For the illegal use charge, a mandatory licence disqualification of 12 months was imposed.
The error in the maximum penalties
After sentence was delivered and the orders perfected, the Office of the Director of Public Prosecutions (SA) brought to the attention of the appellant the fact that the sentencing judge had mis-stated the maximum penalties for two of the offences.
The first error made by the sentencing judge was that he stated that the maximum penalty on the count of attempted robbery was 12 years’ imprisonment when the maximum penalty for a basic offence is 15 years.[1] By s 270A of the CLCA, the penalty for an attempt is not to exceed a maximum of two thirds of the maximum prescribed for the principal offence.[2]
[1] CLCA, s 137(2)(a).
[2] CLCA, s 270A(3)(c), see also Hall v The Queen (2020) 136 SASR 535.
As for the second error concerning the count of theft, the maximum penalty prescribed for a basic offence was imprisonment for 10 years, not the two years stated by the sentencing judge.[3]
[3] CLCA, s 134(1)(a).
Relatively recently, this Court explained that a misapprehension concerning the applicable maximum penalty represents a material error, because it will usually affect the starting point which is adopted and, in that way, the sentence which is imposed for the offending.[4] Even where a single sentence is imposed for a number of offences under s 26 of the Sentencing Act 2017 (SA), an overstatement of one or more of the maximum penalties is apt to create the perception that the offending is more serious than in fact it was.[5] As this Court explained:[6]
In R v Parisi,[7] the Full Court observed that where a maximum penalty was misstated for some offences of a number in respect of which a single penalty was imposed, it was not possible to determine how the judge arrived at the ultimate sentence. In particular, it could not be known what part of the head sentence related to the counts for which the maximum was misstated. The Court concluded that it was necessary to set aside the sentence and exercise the sentencing discretion afresh.[8]
In the present case, the misstatement of the maximum penalty for each offence was a material error. It is appropriate to consider the sentence afresh.[9] However, if this Court concludes, in the separate and independent exercise of its discretion, that no different sentence should be passed, it would not be required to resentence.[10]
[4]     Burgoyne v The King [2024] SASCA 61, [19] (Livesey P, Bleby and David JJA).
[5]     R v Carbone [2012] SASCFC 34, [51].
[6]     Burgoyne v The King [2024] SASCA 61, [19]-[20] (Livesey P, Bleby and David JJA).
[7]     R v Parisi (2003) 86 SASR 183.
[8]     R v Parisi (2003) 86 SASR 183, [20].
[9]     R v Nguyen [2007] SASC 83, [11] (Doyle CJ, with whom Gray and David JJ agreed).
[10] Kentwell v The Queen (2014) 252 CLR 601, [35] and [48].
In this case the problem is a little more complicated than is ordinarily seen. There has been a material overstatement of the maximum penalty applicable to one count and a material understatement of the maximum penalty applicable to another.
The questions for this Court are whether, as a result, the overall sentence is affected by material error and, if it is, whether the sentence should be set aside and the appellant re-sentenced. If the appellant is to be re-sentenced, there is a question about whether this Court should re-sentence or remit the matter for re-sentence. If this Court re-sentences the appellant, there may be a question whether, in the independent exercise of this Court’s discretion, no different sentence should be imposed.[11]
[11] Kentwell v The Queen (2014) 252 CLR 601.
When one looks at the sentencing remarks and the starting points which were adopted for the first and fourth counts, there is no reason to doubt that the sentencing judge adopted the wrong maximum penalties. Nonetheless the understatement of the maximum on the fourth count may possibly have worked to the appellant’s advantage, because it may have caused the judge to think that the offence was less serious than in fact it was. If it were clear that a material error worked to the appellant’s advantage, that might have afforded reason to question whether the sentence should be set aside on the application of the appellant.
However, on a reading of the sentencing remarks that is not clear. It cannot be determined with any confidence whether or not the understatement on the fourth count ultimately worked to the appellant’s advantage. The overstatement of the maximum penalty on the first count may well have outweighed any understatement on the fourth. Ultimately, the Court is left in the position that there were material errors, and these vitiated the exercise of sentencing discretion.
Accordingly, it is necessary to set aside the sentence and consider re-sentencing the appellant.
Re-sentencing by this Court or the District Court?
Ordinarily, where all of the relevant material is available to this Court, it will usually be in the interests of justice that this Court proceed to re-sentence the appellant pursuant to ss 150 and 158(7)(a) of the Criminal Procedure Act1921 (SA).[12]
[12] Hutchins v The Queen [2021] SASCA 31, [3] (Kelly P, Lovell and Livesey JJA); Da Silva v The Queen [2020] SASCFC 66, [30] (Livesey J, with whom Kourakis CJ and Stanley J agreed).
The Court was invited to remit. The Court was told that the appellant has other matters pending in the District Court. No information has been provided about those other matters. The parties are evidently concerned that the appellant’s offending will be addressed at the same time. There is no reason to doubt the appropriateness of taking that course in the circumstances of this case.
Accordingly, whilst it is ordinarily desirable that this Court proceed to re‑sentence, the most expeditious course in this case will be to remit the matter to the District Court so that these and any other pending matters can be addressed by the same judge at the same time.
Conclusion
The respondent does not oppose an extension of time in which the appellant may seek permission to appeal, nor that he be granted permission to appeal against sentence.
The orders of the Court will be:
1.The appellant is granted an extension of time to apply for permission to appeal against sentence, to the date the application was filed on 2 September 2024.
2.The appellant is granted permission to appeal against sentence.
3.The appeal is allowed.
4.The sentence imposed on 23 June 2023 is set aside.
5.These matters are remitted to the District Court for re-sentence.
It will be necessary to hear from the parties concerning the terms upon which the matter is remitted. It will be necessary for the parties to confer. The parties have liberty to apply on reasonable notice in writing.