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…

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 Hughes v The King

Details

AGLC: Hughes v The King [2024] SASCA 110
Case: [2024] SASCA 110
Decision Date: 9 September 2024

CaseChat Overview and Summary

In *Hughes v The King*, the appellant, Hughes, appealed against a sentence imposed by the District Court. The respondent, The King, did not oppose an extension of time for the appellant to seek permission to appeal against sentence, nor did it oppose the granting of such permission.

The Court was required to determine whether to grant the appellant an extension of time to apply for permission to appeal against sentence, whether to grant permission to appeal, and if so, whether the appeal against sentence should be allowed and the existing sentence set aside.

The Court granted the appellant an extension of time to apply for permission to appeal against sentence, and subsequently granted permission to appeal. The appeal was allowed, and the sentence imposed on 23 June 2023 was set aside. The matters were remitted to the District Court for re-sentencing, with directions for the parties to confer and liberty to apply concerning the terms of the remission.

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

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.

Ratio Decidendi

Legal Principle Established

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