Owens v The King - [2024] SASCA 65

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
OWENS v THE KING
[2024] SASCA 65
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)
21 May 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY AND QUASI-CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM
The appellant pleaded guilty to two counts of trafficking in a controlled drug and one count of breaching a firearms prohibition order.
The appellant was sentenced to six years, two months and four days imprisonment, which was reduced to five years, six months and 28 days to allow for the 220 days the appellant had spent in custody. A non-parole period of three years was fixed.
The appellant appeals against the sentence on the ground the sentencing Judge, when fixing the non-parole period, failed to take into account, or sufficiently take into account, the 220 days spent in custody.
Held, per the Court, granting permission to appeal and allowing the appeal:
1.The sentencing Judge erred in making no reference as to how the 220 days in custody were accounted for when fixing the non-parole period.

2. The sentence imposed in the District Court is set aside.
3.The appellant is resentenced to five years, six months and 28 days imprisonment, with a fixed non-parole period of 2 years, 8 months and 24 days. The head sentence and non-parole period are backdated to 14 June 2023.

Controlled Substances Act 1984 (SA) s 32(3); Firearms Act 2015 (SA) s 45(2), referred to.
R v Tsonis (2018) 131 SASR 416; Ribbon v The Queen [2022] SASCA 15, considered.

OWENS v THE KING
[2024] SASCA 65
Court of Appeal — Criminal: Lovell, Doyle and David JJA

THE COURT (ex tempore): The appellant pleaded guilty to two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1994 (SA) and one count of breaching a firearms prohibition order contrary to s 45(2) of the Firearms Act 2015 (SA).
Prior to being sentenced, the appellant had spent 220 days in custody. The sentencing Judge fixed one penalty starting with a period of imprisonment of six years and six months then reduced by five per cent to allow for his pleas of guilty. That led to a sentence of six years, two months and four days which was then reduced by a further 220 days to allow for the time that the appellant had spent in custody. The final head sentence was five years, six months and 28 days and the sentencing Judge fixed a non-parole period of three years.
The sentencing Judge fixed the non-parole period in relation to the head sentence for which the deduction of 220 days had already been made. However, the sentencing Judge made no reference to the 220 days the…

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 Owens v The King

Details

AGLC: Owens v The King [2024] SASCA 65
Case: [2024] SASCA 65
Decision Date: 21 May 2024

CaseChat Overview and Summary

The case of *Owens v The King* concerned an appeal against sentence brought by the applicant, Owens, to the Full Court of the Supreme Court of South Australia. The dispute arose from the sentencing imposed by a judge of the District Court following the applicant's conviction for a serious criminal offence.

The primary legal issue before the Full Court was whether the sentencing judge had erred in failing to adequately account for the time the applicant had spent in custody and quasi-custody when determining the non-parole period. The Court was required to consider the principles governing the imposition of non-parole periods and the weight to be given to pre-sentence detention in the overall sentencing determination.

The Full Court reasoned that while a sentencing judge has a broad discretion, the failure to give sufficient weight to time already served in custody can lead to an unjust sentence. The Court applied the principle that pre-sentence detention is a significant factor that must be reflected in the final sentence, particularly when determining the minimum term before an offender becomes eligible for parole. In this instance, the Court found that the sentencing judge had not given adequate consideration to this factor, resulting in an error in the imposition of the non-parole period.

Consequently, the Full Court allowed the appeal, quashed the original sentence, and resentenced the applicant. The new sentence included a non-parole period that more appropriately reflected the time the applicant had already spent in custody.

Orders