(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
30 March 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant seeks permission to appeal against sentence on the bases that the sentencing judge infringed the principles in The Queen v De Simoni (1981) 147 CLR 383 and s 10(1)(d) of the Sentencing Act 2017 (SA), and the sentence was manifestly excessive.
The appellant was in possession of a loaded handgun which he brandished outside suburban premises in broad daylight when he was both deprived of sleep and intoxicated by alcohol and methylamphetamine.
The appellant pleaded guilty to aggravated possession of a firearm without a licence and other offending. The appellant was sentenced to a term of imprisonment of four years which, after account was taken of the appellant’s plea, was reduced to three years, four months and five days. The sentencing judge fixed a non-parole period of two years. The sentencing judge refused to order that the sentence be served on home detention.
HELD: (the Court) granting permission to appeal but dismissing the appeal:
1.It is not always easy to determine where the sentencing court must draw the line between considering relevant circumstances of aggravation and disregarding those which amount to uncharged offending. There will invariably arise questions of fact, degree and fairness, to be determined according to the particular facts and circumstances of each case.
2.There is no reason to go behind the remarks of the sentencing judge to the effect that the appellant was not to be sentenced in relation to any of the threats he made whilst he was on the property.
3.None of the statements made by the sentencing judge regarding the circumstances of the offending amounted to findings of uncharged offending on which the appellant was sentenced.
4.Whilst it may be accepted that the sentence imposed in this case was severe, the offending was appropriately adjudged to be at the higher end of the scale for offending of its kind. The starting point of four years’ imprisonment was not manifestly excessive.
[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
Mile v The King [2023] SASCA 33
Case
[2023] SASCA 33
Decision Date
CaseChat Overview and Summary
The parties to this matter were Mile (the appellant) and The King (the respondent). The dispute concerned an appeal against a sentence imposed on the appellant. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Livesey P, Doyle and David JJ.
The primary legal issue before the Court was whether the sentence imposed on the appellant was manifestly excessive, thereby providing grounds for interference on appeal.
The Court considered the grounds of appeal, finding that one ground was reasonably arguable. Despite this, the Court ultimately determined that the appeal against the sentence on the basis of manifest excess should be dismissed.
Permission to appeal was granted, but the appeal itself was dismissed.
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
Appeal ground 2 is reasonably arguable. Though permission should be granted, the appeal on the ground of manifest excess should be dismissed.Conclusion Permission to appeal is granted but the appeal is dismissed.