SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HUTCHINS v THE QUEEN
[2021] SASCA 31
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Livesey)
13 April 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - TRESPASS TO LAND
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
The appellant was sentenced for the offences of threatening a person in judicial proceedings to influence the outcome, contrary to s 248 of the Criminal Law Consolidation Act 1935 (SA) (the Act), aggravated serious criminal trespass in a place of residence, contrary to s 170(1) of the Act and a charge of theft, contrary to s 134 of the Act.
The sentencing Judge imposed a total sentence of five years, six months and 19 days for these offences.
At the time of this offending the appellant was on parole with an unexpired balance of an earlier sentence of three years, seven months and 11 days.
It was agreed that the appellant was a “serious repeat offender” within the meaning of s 53 of the Sentencing Act 2017 (SA).
Although s 54(1)(b) only required that the minimum non-parole period of four-fifths of the head sentence be calculated on the head sentence of five years, six months and 19 days, the sentencing Judge added the unexpired parole period to this head sentence before determining the minimum four-fifths non-parole period pursuant to s 54(1)(b) of the Sentencing Act 2017 (SA). This resulted in a non-parole period of seven years and four months.
It was conceded that this involved a specific error and that the non-parole period was manifestly excessive.
Held (by the Court), allowing the appeal and quashing the sentence imposed by the sentencing Judge:
1. The sentencing Judge erred in the application of s 54 of the Sentencing Act 2017 (SA) by having regard to the unexpired parole period for earlier offending when considering the minimum non-parole period under the four-fifths rule.
2. When all of the relevant material is before the Court of Appeal it will ordinarily be in the interests of justice that resentencing be considered by the Court of Appeal pursuant to s 158(7)(a) of the Criminal Procedure Act 1921(SA).
3. The appellant is resentenced for the three subject offences to imprisonment for five years, six months and 19 days, cumulative on the unexpired balance of the earlier sentence, making a total head sentence of nine years, two months and 11 days.
4. Pursuant to s 47 of the Sentencing Act 2017 (SA), a non-parole period of six years is fixed.
Sentencing Act 2017 (SA) s 47, s 54(1)(b); Criminal Law Consolidation Act 1935 (SA) s 170(1), s 134, s 248; Criminal Procedure Act 1921 (SA) s 158(7)(a), referred to.
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- AGLC
- Hutchins v The Queen [2021] SASCA 31
- Case
- [2021] SASCA 31
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court of Appeal was whether the sentencing judge had erred in applying section 54 of the *Sentencing Act 2017* (SA). Specifically, the court had to determine if the judge had improperly taken into account the unexpired parole period from earlier offending when calculating the minimum non-parole period under the four-fifths rule.
The Court of Appeal found that the sentencing judge had indeed erred in this regard. The court reasoned that section 54 of the *Sentencing Act 2017* (SA) requires the sentencing judge to consider the four-fifths rule in relation to the sentence for the current offences, and not to be influenced by the unexpired parole period of prior sentences. The Court of Appeal determined that it was in the interests of justice for it to resentence the appellant, exercising its powers under section 158(7)(a) of the *Criminal Procedure Act 1921* (SA).
Consequently, the Court of Appeal allowed the appeal, quashed the original sentence, and resentenced the appellant. The new sentence for the three subject offences was imprisonment for five years, six months, and 19 days, to be served cumulatively on the unexpired balance of the earlier sentence, resulting in a total head sentence of nine years, two months, and 11 days. A non-parole period of six years was fixed pursuant to section 47 of the *Sentencing Act 2017* (SA).
Orders
Orders of the court
Held (by the Court), allowing the appeal and quashing the sentence imposed by the sentencing Judge:
1. The sentencing Judge erred in the application of s 54 of the Sentencing Act 2017 (SA) by having regard to the unexpired parole period for earlier offending when considering the minimum non-parole period under the four-fifths rule.
2. When all of the relevant material is before the Court of Appeal it will ordinarily be in the interests of justice that resentencing be considered by the Court of Appeal pursuant to s 158(7)(a) of the Criminal Procedure Act 1921(SA).
3. The appellant is resentenced for the three subject offences to imprisonment for five years, six months and 19 days, cumulative on the unexpired balance of the earlier sentence, making a total head sentence of nine years, two months and 11 days.
4. Pursuant to s 47 of the Sentencing Act 2017 (SA), a non-parole period of six years is fixed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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