R v Alderson - [2016] SASCFC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ALDERSON
[2016] SASCFC 85
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
8 August 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
Appeal against sentence.
The appellant pleaded guilty to attempting to pervert the course of justice. The defendant and a friend were walking home from a party when a vehicle driven by another friend stuck the appellant’s friend, who died at the scene despite CPR administered to him by the driver.
The appellant and the driver both gave false statements to the police at the scene, stating that their friend had been struck by an unknown dark vehicle. Some hours later, they both gave formal statements to the police confirming their stories.
Later that day, the appellant and the driver both contacted police and told the police the true facts. In the meantime, the police lost the opportunity to take a blood alcohol test of the driver.
A Judge of the District Court sentenced the appellant to imprisonment for 11 months, reduced from 18 months due to his guilty plea and suspended on his entering into a bond to be of good behaviour for two years. The appellant appeals against the sentence on the ground that it is manifestly excessive.
Held by Blue J (Kourakis CJ and Stanley J agreeing) allowing the appeal:
1. The gravity and circumstances of the offence were such that any sentence other than of imprisonment would have been inappropriate (at [48]).
2. A starting point of imprisonment for 18 months was manifestly excessive (at [54]).
3. Subject to section 10C(3) of the Criminal Law (Sentencing) Act, the maximum discount available under section 10B for the guilty plea is 10 per cent. However, under section 10C(3), the maximum discount is 20 per cent because the appellant was not committed for trial on the charge of attempting to pervert the course of justice and an ex officio Information was later laid charging that offence (at [57]-[62]).
4. Observations on the need for legislative review of section 10C (at [64]).
5. Appeal allowed. Appellant resentenced to imprisonment for nine months and 18 days, suspended upon entering into a bond to be of good behaviour until November 2017 (at [65]-[66]).
Criminal Law Consolidation Act 1935 (SA) s 19ab, s 43, s 241, s 242, s 243, s 248, s 242, s 245, s 248, s 256; Road Traffic Act 1935 (SA) s 45(1), s 256; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 39, referred to.
Higgins v R Unreported, Court of Criminal Appeal of Western Australia, 1990; R v Barba [1977] 2 NSWLR 502; R v Goulding [2007] SASC 60; R v Manunta (1989) 54 SASR 17; R v Morse

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 R v Alderson

Details

AGLC: R v Alderson [2016] SASCFC 85
Case: [2016] SASCFC 85
Decision Date: 8 August 2016

CaseChat Overview and Summary

The appeal concerned Daniel Alderson, who was charged with attempting to pervert the course of justice under s 256(1) of the Criminal Law Consolidation Act 1935 (SA). The charge arose from providing a false statement to the police with the intention of assisting Daniel Jones to escape apprehension or prosecution for an offence. The matter was heard in the District Court of South Australia.

The central legal issue before the court was the appropriate sentence for the appellant's offence, particularly in light of his plea of guilty and the circumstances surrounding the commission of the offence. The court also considered the application of s 10C of the Criminal Law Consolidation Act 1935 (SA) in situations where an ex officio information is laid in the District Court for an offence in respect of which a defendant has not been committed for trial.

The court allowed the appeal, setting aside the original sentence imposed by the District Court. The reasoning focused on the sentencing principles applicable to an attempt to pervert the course of justice, taking into account the appellant's guilty plea as a mitigating factor. The court also noted that s 10C of the Act could lead to unintended anomalies in practice and suggested legislative amendment.

The appellant was re-sentenced to imprisonment for nine months and 18 days, which was suspended on the condition that he enter into a bond to be of good behaviour until 16 November 2017.

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

Section 10C is drafted on the assumption that informations are only laid in the District and Supreme Courts charging offences in respect of which defendants have been committed for trial. However, as occurred in this case, it is not unusual for the Director to lay an ex officio information in the District or Supreme Court charging an offence in respect of which a defendant is not committed. It is desirable that section 10C be amended to address this situation to avoid unintended anomalies. Conclusion I would allow the appeal. I would set aside the sentence imposed by the Judge. I would re-sentence the appellant to imprisonment for nine months and 18 days, suspended on the condition that he enter into a bond to be of good behaviour until 16 November 2017. STANLEY J: I would allow the appeal. I agree with the reasons of Blue J and the orders he proposes.

Ratio Decidendi

Legal Principle Established

Section 256 provides:256—Attempt to obstruct or pervert course of justice or due administration of law(1)A person who attempts to obstruct or pervert the course of justice or the due administration of the law in a manner not otherwise dealt with in the preceding provisions of this Part is guilty of an offence.Maximum penalty: Imprisonment for 4 years.(2)Where—(a) a person charged with an offence against any of the preceding provisions of this Part is found not guilty of the offence charged; but(b) the court is satisfied that the accused is guilty of an offence against subsection (1),the court may, if the maximum penalty prescribed for an offence against subsection (1) is the same as or less than the maximum penalty prescribed for the offence charged, find the accused guilty of an offence against subsection (1).History of proceedings On 11 December 2013, an information was filed in the Magistrates Court against Daniel Jones, Michael Jones and the appellant under which:1Daniel Jones was charged with aggravated driving without due care;[6] 2Daniel Jones was charged with leaving an accident scene after causing death by careless driving;[7] 3Daniel Jones, Michael Jones and the appellant were charged with attempting to pervert the course of justice;[8] and4the appellant and Michael Jones were charged with assisting an offender (knowing or believing that Daniel Jones had committed an offence, namely aggravated driving without due care, they provided a false statement to police, with the intention of assisting Daniel Jones to escape apprehension or prosecution for the offence).[9][6] Road Traffic Act 1935 (SA) s 45(1).[7] Criminal Law Consolidation Act 1935 (SA) s 19AB(1).[8] Criminal Law Consolidation Act 1935 (SA) s 256(1).[9] Criminal Law Consolidation Act 1935 (SA) s 241(1). On 18 December 2013, the appellant first appeared in the Magistrates Court on the charge of attempting to pervert the course of justice. On 18 June 2014, the prosecution tendered no evidence on count 3 (attempt to pervert the course of justice) and the defendants entered not guilty pleas to the remaining counts and were committed for trial on those counts. On 18 July 2014, the Director filed an information in the District Court against Daniel Jones, Michael Jones and the appellant under which:1Daniel Jones was charged with aggravated driving without due care;2Daniel Jones was charged with leaving an accident scene after causing death by careless driving;3the appellant was charged with assisting an offender; and4Michael Jones was charged with assisting an offender. On 21 July 2014, Daniel Jones, Michael Jones and the appellant were arraigned in the District Court and pleaded not guilty. The matter was subsequently listed for trial to commence on 16 June 2015. Shortly before 16 June 2015, it was agreed that Daniel Jones would plead guilty to failing to present to police having been the driver of a vehicle involved in an accident in which a person is killed or injured,[10] Daniel Jones and the appellant would each plead guilty to attempting to pervert the course of justice and the charge against Michael Jones would not be pursued.[10] Road Traffic Act 1935 (SA) s 43.