Loleit v The Queen - [2020] SASCFC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
LOLEIT v THE QUEEN
[2020] SASCFC 51
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Justice Bleby)
11 June 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCING
Appeal against sentence.
The appellant and the victim were good friends. On 21 February 2018, the appellant and the victim had been drinking alcohol. They drove to a camping place where they intended to spend the night. Late in the evening and early in the morning on 22 February 2018 the two men argued. The argument developed into a physical fight. When the fight finished the two men fell asleep in their tents. When the men woke later that morning, the appellant asked the victim whether he wished to return with him to Port Pirie. The victim said that he was feeling unwell and would stay at the campsite. The appellant returned to the campsite in the evening. In the meantime, the victim died. The evidence established that the cause of death was blunt force trauma to the chest and abdomen resulting in the rupture of a pre-existing cyst on the spleen and the loss of 1.3 litres of blood into the abdominal cavity.
The appellant pleaded guilty to and was convicted of manslaughter. The sentencing Judge adopted a starting point of imprisonment for nine years and reduced that by 20%, on account of the appellant’s guilty plea, to a head sentence of seven years, two months and two weeks. The non-parole period was set at four-fifths of the head sentence, being five years, nine months and one week.
The appellant agitates four grounds of appeal:
1. The head sentence and the non-parole period were manifestly excessive given the unique circumstances of the cause of death and the genuine contrition and remorse of the appellant.
2. The Judge sentenced on a materially incorrect factual basis.
3. The Judge erred as a matter of law in the manner in which he construed the word “condition” in s 48(3)(a) of the Sentencing Act 2017 (SA).
4. The Judge erred in not finding that the plea of guilty to the charge and the circumstances around that plea were sufficient to amount to special reasons in accordance with s 48(3)(b) of the Sentencing Act 2017 (SA).
Held, Parker J (with Kourakis CJ and Bleby J agreeing), refusing permission to appeal on Grounds 1 and 2, dismissing the appeal on Ground 3, and refusing permission to add Ground 4:
1. The sentence was well within the range reasonably available to the Judge.
2. The Judge was correct to conclude that it was not possible to know for certain which of the appellant’s actions had caused the victim’s fatal injury but that it was most likely when the appellant fell on top of the victim…

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 Loleit v The Queen

Details

AGLC: Loleit v The Queen [2020] SASCFC 51
Case: [2020] SASCFC 51
Decision Date: 11 June 2020

CaseChat Overview and Summary

This matter came before the Full Court of the Supreme Court of South Australia, with Kourakis CJ, Parker and Bleby JJ presiding. The appeal concerned the sentencing of the appellant, Loleit, for an offence of manslaughter. The primary dispute revolved around the factual basis upon which the sentencing judge imposed the sentence, and whether the appellant was entitled to a further discount on his head sentence.

The legal issues before the court included whether the sentencing judge erred in determining the factual basis for sentencing, and whether there were special reasons to justify a further reduction in the head sentence beyond the standard 20% discount. Specifically, the court considered the principles governing how a sentencing judge should approach disputed facts or alternative interpretations of facts presented by the defence, and whether the prosecution's stance on these matters binds the judge. The court also examined whether the appellant was entitled to add a new ground of appeal concerning the non-parole period.

The court affirmed the principles established in *R v Perre*, stating that the sentencing judge is not bound by the defence's interpretation of facts or by the prosecution's agreement with the defence's submissions. The judge retains the ultimate discretion to determine the factual basis for sentencing, drawing inferences from the evidence presented. The court found that the appellant had received the maximum permissible discount on his head sentence, and therefore, there were no special reasons to warrant any further reduction.

Consequently, the court refused permission to add Ground 4 to the Notice of Appeal, refused permission to appeal on Grounds 1 and 2, and dismissed Ground 3.

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

I would refuse permission to add Ground 4 to the Notice of Appeal.Conclusion I would refuse permission to appeal on Grounds 1 and 2 and refuse permission to add Ground 4. I would dismiss Ground 3. BLEBY J: For the reasons given by Parker J, I would refuse permission to appeal on Grounds 1 and 2, and refuse permission to add Ground 4. I would dismiss Ground 3.

Ratio Decidendi

Legal Principle Established

The respondent submits that the proposed Ground 4 is misconceived. The non‑parole period proposed by the Judge constituted four-fifths of a head sentence that had already been discounted by the permissible maximum of 20 per cent. As the appellant was awarded the maximum discount to which he was entitled, there was no special reason. The respondent contends that the appellant should be refused leave to add Ground 4 to the Notice of Appeal.ConsiderationGround 2 As Ground 2 concerns the factual basis upon which the appellant was sentenced, I will adopt the same approach as the respondent and consider that ground first. The principles governing findings of fact for sentencing purposes were, as the respondent has noted, stated by King CJ in R v Perre. King CJ stated the following principles:[11]The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge. Where a defendant, while not disputing the primary facts deposed to, wishes the sentencing judge to sentence about the basis of a certain interpretation of those facts or upon a version of the defendant's role in the matter which may be in conflict with inferences from the primary facts which are open to the judge, he must make a decision as to the course which he wishes to follow. The defendant may give evidence or call evidence in support of his interpretation or version, or he may put it before the judge by way of submissions by his counsel asking the judge to act upon that interpretation or version. The prosecution may or may not make submissions accepting or opposing the interpretation or version put forward. The decision as to the basis upon which sentence is to be imposed is not, however, a matter for the prosecution but for the judge. I reject completely the suggestion which surfaced faintly on this appeal and has been made to the Court of Criminal Appeal in other cases, that the judge is bound to act upon the interpretation or version put forward by the defence unless it is disputed by the prosecution. It is for the judge to decide what inferences he will draw from the primary facts and to decide the basis upon which he will impose sentence. Even in cases in which the prosecution joins with the defence in asking for sentence to be imposed upon an agreed basis which differs from the depositions or from inferences which the judge may be disposed to draw from the depositions, it is for the judge to decide whether he is prepared to act upon that agreed basis.There seems to be a misunderstanding abroad as to the respective roles of the judge and counsel in relation to the basis upon which sentence is imposed. It is for counsel to decide whether or not to call evidence. If counsel relies upon submissions from the bar table, it is not part of the ordinary role of the judge to indicate that he is not prepared to act upon those submissions so that counsel may decide whether to call evidence. A judge may do so, but he is not bound to do so. He may, and generally will, simply consider the depositions and the submissions and make his decision as to the basis of sentence. There will, of course, be exceptions. If counsel for the defence were to indicate that he refrains from calling evidence because he has reached agreement with the prosecution as to the basis upon which sentence should be imposed, the judge would be bound, generally speaking, to indicate that he is unwilling, if such be the case, to proceed upon the agreed basis, and to give counsel the opportunity of calling evidence. There may be other circumstances in which the defence can validly claim to have been misled. In general, however, neither the silence, or even concurrence, of counsel for the prosecution, nor the silence of the judge, will entitle counsel for the defence to assume that the judge will sentence upon the basis of his submissions.[11] (1986) 41 SASR 105 at 105-106