Lloyd v The King

Case [2023] SASCA 19

Supreme Court of South Australia

(Court of Appeal: Criminal)

LLOYD v THE KING

[2023] SASCA 19

Judgment of the Court of Appeal  

(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Auxiliary Justice Mazza)

2 March 2023

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT IN COMPANY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE

On 10 February 2022, following guilty pleas, the appellant and a co-accused were convicted and sentenced for one count of aggravated serious criminal trespass, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (Count 1), one count of aggravated assault, contrary to s 20(3) of the CLCA (Count 2), and one count of theft, contrary to s 134(1) of the CLCA (Count 3). Another co-accused, D, had been previously sentenced by a different judge for offences arising from the same incident. Counts 1 and 2 were aggravated by reason that the offences were committed in company. In relation to Count 2, initially a further aggravated circumstance alleged that the appellant had used or threatened to use a firearm. This was subsequently withdrawn prior to the appellant pleading guilty to that offence.

The sentencing Judge proceeded pursuant to s 26 of the Sentencing Act 2017 (SA) and adopted a starting point of five years imprisonment which was reduced by five per cent on account of the appellant’s guilty pleas, resulting in a head sentence of four years and nine months imprisonment. That sentence was further reduced to four years, seven months, and 23 days on account of time spent in custody. A non-parole period of two years and ten months was fixed. The sentence was backdated to 17 June 2020, being the date upon which the appellant was remanded in custody solely in relation to this matter. The appellant was also convicted of three counts of breaching a bail agreement, for which no further penalty was imposed.

The appellant now appeals against the sentence on the following grounds:

1.the sentence was manifestly excessive (Ground 1);

2.the sentencing Judge infringed the principle enunciated in R v De Simoni (1981) 147 CLR 383 (‘De Simoni’) by sentencing the appellant on the basis that he was armed with an item that had the appearance of a sawn-off rifle at the time of the commission of the offence when an aggravating circumstance that the appellant ‘used or threatened to use a firearm’ had been withdrawn, and further, the appellant in entering his guilty plea did not accept that factual basis (Ground 2); and

3.the…

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Lloyd v The King [2023] SASCA 19
Case
[2023] SASCA 19
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CaseChat Overview and Summary

The appeal in *Lloyd v The King* was brought before the Full Court of the Supreme Court of South Australia by the appellant, who had pleaded guilty to aggravated assault. The central dispute concerned the factual basis upon which the appellant entered his guilty plea, specifically whether he had admitted to possessing a firearm during the commission of the offence, which was a key aggravating factor.

The legal issues before the Court were whether the appellant's guilty plea was entered on a proper factual basis, and consequently, whether the sentence imposed was manifestly excessive. This involved determining whether the appellant had been adequately informed of, and had understood, the allegations against him, particularly concerning the presence of a firearm, and whether his instructions to his legal representative accurately reflected his understanding of the charges and the basis for his plea. The Court also considered the principle of parity between co-offenders in sentencing.

The Court examined the evidence provided by both the appellant and his former solicitor regarding their communications about the charges. The appellant maintained that he had consistently denied possessing a firearm and had instructed his solicitor to plead guilty only on the basis of being in company with another person. He asserted that he had expressed a willingness to go to trial if the allegation of possessing a firearm was insisted upon. The Court noted that the solicitor's attendance notes and correspondence with the prosecution contained conflicting statements regarding the appellant's admissions about the firearm. The Court ultimately found that the factual basis for the guilty plea, as presented to the sentencing judge, was not properly established, as the appellant had not unequivocally accepted the aggravating circumstance of possessing a firearm.

Consequently, the Full Court allowed the appeal, quashed the sentence, and remitted the matter for re-sentencing. The Court held that the sentencing judge had erred by proceeding on the assumption that the appellant had admitted to possessing a firearm, when the evidence indicated a dispute on that crucial factual element.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Both the appellant and his former solicitor, Ms Stacey Carter, gave evidence at the appeal hearing as to the basis upon which he entered his guilty plea to the offence of aggravated assault. It is necessary to first consider their evidence.Appellant’s evidence The appellant denied ever advising Ms Carter that he was in possession of a firearm (or an item resembling a firearm) at the time of committing the offence. He said that in his discussions with Ms Carter he always maintained that there was no firearm present. The appellant agreed that Ms Carter attended the Yatala Labour Prison on 6 October 2019 to discuss the charges, and he told her that he would plead guilty to everything to ‘progress’ the case. It was the appellant’s evidence that he said this because he was frustrated with the legal system and felt he was being ignored. During this visit he did not recall Ms Carter showing, or reading to him, the facts of charge. The appellant also agreed that, on a separate occasion, he told Ms Carter to ‘plead to it all and just get it out of the way or whatever’ but denied that this was an acceptance that he was in possession of a firearm at the time of the offence. However, he also denied telling Ms Carter that he wanted to ‘plead to it all’ during a telephone conversation on 12 August 2021. Contrary to Ms Carter’s telephone attendance notes from around December 2019, the appellant denied ever telling Ms Carter that he had a gun but only used it to threaten D (not the complainant). The appellant agreed that he had been shown the photograph of himself with money, and a firearm strapped in his pants, but denied discussing it in detail. He also said that Ms Carter never went through all the evidence with him. When referred to a letter from Ms Carter to the prosecution dated 6 September 2021, which states ‘at no point is it ever alleged that our client pointed a firearm or used a firearm towards the complainant and therefore that part of the aggravating feature on the fresh Information is in fact disputed’, he agreed that this was his position and that his instructions were, as was set out in that letter, to plead guilty to one count of aggravated assault on the basis that he was in company with another. He said this was his understanding of the aggravating circumstance. The appellant did not recall Ms Carter showing him the prosecution’s response which expressly stated that ‘we maintain that the firearm was present’. The appellant said that during a brief phone call with Ms Carter before the hearing on 7 September 2021, he expressly told her that he did not want to agree to the allegation that he was in possession of a firearm and that he would be willing to go to trial. He said that at no point during that phone call was he made aware that his guilty pleas would be premised on the facts as set out in the PCS. The appellant was referred to Ms Carter’s telephone attendance notes dated 7 September 2021 which state ‘Lloyd pointed it at [D]. He accepts that.’ He denied ever ‘accepting’ that factual allegation and reiterated that he maintained his instructions throughout that there was no firearm involved.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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