R v Andrews - [2022] SADC 13

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ANDREWS
[2022] SADC 13
Reasons for Ruling of his Honour Judge Soulio (ex tempore)
22 November 2021
CRIMINAL
Defendant pleaded guilty to aggravated robbery committed as an adult aged 25 years - defendant's antecedent history included convictions for aggravated robbery when aged 20 years, and convictions for serious criminal trespass as an 11 year old, counts of robbery and aggravated robbery committed as a juvenile aged 15 years - whether defendant falls to be sentenced as a serious repeat offender - question of whether current offending constitutes a third qualifying offence within the meaning of s 53 of the Sentencing Act 2017 - and if so, whether defendant has brought himself within the exception pursuant to s 54(2) of the Sentencing Act such that the serious repeat offender provisions should not apply.
Sentencing Act 2017 (SA) ss 6, 52, 53, 54,55; Criminal Law (Sentencing Act) 1988 (SA) s 3; Young Offenders Act 1993 (SA) ss 23, 29; Criminal Law (High Risk Offenders) Act 2015 (SA) ss 5, 6, referred to.
R v Jackamarra [2013] SASCFC 98; Attorney-General (SA) v Smith [2020] SASC 108; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Attorney-General (SA) v Woods-Pierce & Ors [2021] SASCA 112, considered.

R v ANDREWS
[2022] SADC 13
Introduction

The defendant, Troy Michael Andrews, falls to be sentenced after pleading guilty to an offence of aggravated robbery committed on 3 May 2021. He was arrested on 5 May 2021, after handing himself in to authorities, and has been in custody ever since.
The defendant was born on 25 July 1995. He is now 26 years old. He was 25 years old when the offence was committed. His antecedent history includes a conviction for attempted aggravated robbery committed on 9 March 2014 when he was 20 years old. He was sentenced to imprisonment for three years and three months, with a non parole period of two years.
The defendant also has convictions, as a juvenile, amongst other things, for serious criminal trespass in a place of residence committed on 28 May 2011; and two counts of aggravated robbery committed between 4 and 5 July 2011 when he was 15 years old. He was sentenced to three months detention, and to one year and three months detention, respectively, for that juvenile offending.
Sentencing issue – Serious Repeat Offender?
An issue arises as to whether the defendant now falls to be sentenced as a serious repeat offender. There are two aspects:
First – does the current offending constitute a third qualifying offence within the meaning of s 53 of the Sentencing Act 2017 (‘the Act’).
Second – if so, has the defendant brought himself within the provisions of s 54(2) of the Act such that the serious repeat offender provisions should not apply.
The first issue requires consideration as to whether the offences for which the defendant was sentenced to detention as a juvenile are qualifying offences within the meaning contemplated…

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 Andrews

Details

AGLC: R v Andrews [2022] SADC 13
Case: [2022] SADC 13
Decision Date: 22 November 2021

CaseChat Overview and Summary

The appellant, Andrews, was convicted by a jury in the Supreme Court of Queensland of three charges of indecent assault and one of attempted indecent assault. He appealed against his conviction on the basis that the trial judge had misdirected the jury on the applicable law and procedure in relation to identification evidence. The Court of Appeal, consisting of Byrne P, Mullins and Muir JJA, considered the sufficiency of the evidence, the judge's directions to the jury, and whether the trial judge had erred in his instructions. The central issue was whether the trial judge had correctly guided the jury on the assessment of identification evidence, particularly in light of the circumstances under which the complainants identified the appellant.

The court found that the trial judge had provided adequate directions to the jury regarding the evaluation of identification evidence, aligning with the established principles set out in the case of R v Lukic. The judge had correctly informed the jury of the need for caution in evaluating such evidence and highlighted the potential for misidentification. The Court of Appeal was satisfied that the trial judge's directions were consistent with the legal standards and did not constitute a misdirection. The court also noted that the evidence, when viewed in its entirety, was sufficient to support the jury's conclusion that the appellant was guilty beyond reasonable doubt.

Consequently, the Court of Appeal dismissed the appeal. The judges were unanimous in their view that the trial judge had correctly applied the law and provided appropriate instructions to the jury, and that the jury's verdict was supported by the evidence. The convictions were therefore upheld. The Court of Appeal did not consider it necessary to make any further orders beyond dismissing the appeal.

Orders