(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice B Doyle)
20 March 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - ATTEMPTED MURDER
Application for permission to appeal against sentence on the ground that it is manifestly excessive. The applicant requires an extension of time of around nine years.
The offending involved a vicious attack on the victim who was home alone. The applicant was wearing a balaclava and rubber gloves and wielding an aluminium bar. The victim sustained serious brain and other injuries. The attack was only interrupted when her domestic partner and son returned home unexpectedly early from a fishing trip. Had they not done so it is likely that the victim would have been murdered.
The applicant was not identified as a suspect until nearly a decade after the offending, when his DNA was entered into a police database and linked to the crime scene. It emerged that the applicant was living with the daughter of the victim’s domestic partner at the time of the attack. After two trials the applicant was convicted, by a unanimous jury verdict, of attempted murder contrary to ss 11 and 270A of the Criminal Law Consolidation Act 1935 (SA).
At the time of sentencing, the applicant was already serving a sentence of imprisonment for 10 years, with a non-parole period of seven years, for 26 counts of dishonesty involving a scheme in which fraudulent Victims of Crime claims caused a loss of over $1 million.
The sentencing judge, Blue J, sentenced the applicant to 20 years’ imprisonment, imposed cumulatively on the existing sentence, leading to a combined head sentence of 30 years’ imprisonment and an extended non-parole period of 20 years, backdated to when the applicant was first taken into custody for his fraud offending.
Held (the Court), dismissing the application for an extension of time in which to seek permission to appeal against sentence:
1.Acknowledging that each case must depend upon its particular facts and circumstances, sentences for crimes that include serious examples of attempted murder are not capped at a ceiling of 14 or 15-years’ imprisonment.
2.The appellant’s pre-meditated, violent attack was not mitigated by any favourable circumstances. No motive for the offending has ever been offered. A severe sentence was an appropriate response. It cannot be said that this heavy sentence was unreasonable or unjust.
3.Having regard to all of the circumstances before the Court, including the lack of merit in the proposed sentence appeal, the inadequate explanation for the applicant’s delay, and the public interest in the finality of litigation, no proper basis has been laid for the favourable exercise of the discretion to extend time.
[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.
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Details
AGLC
Lowe v The King [2025] SASCA 24
Case
[2025] SASCA 24
Decision Date
CaseChat Overview and Summary
The applicant, Lowe, sought an extension of time to appeal against a sentence imposed by the District Court of South Australia. The specific offence for which the sentence was imposed is not detailed in the provided text, but the catchwords indicate it relates to attempted murder. The application was heard by the Full Court of the Supreme Court of South Australia.
The central legal issue before the Full Court was whether there was a proper basis to exercise its discretion to grant an extension of time for Lowe to commence his application for permission to appeal against his sentence. This required the Court to consider the reasons for the delay and the merits of the proposed appeal.
The Court concluded that no proper basis had been laid for the favourable exercise of its discretion. This implies that the applicant failed to provide sufficient justification for the delay in filing the appeal application, and/or that the proposed grounds of appeal lacked sufficient merit to warrant an extension of time. Consequently, the Court dismissed the application for an extension of time.
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
Having regard to all of the circumstances before the Court, no proper basis has been laid for the favourable exercise of the discretion to extend time within which to commence the application for permission to appeal against sentence. Conclusion The application for an extension of time in which to seek permission to appeal against sentence must be dismissed.ANNEXURE A