R v B, P - [2007] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, P
[2007] SASC 134
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Layton)
20 April 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appellant sentenced for several sexual offences - appellant serving period of detention pursuant to s 269O of Criminal Law Consolidation Act 1935 when sentenced – whether sentencing judge had power to make order that sentence commenced after period of detention - whether sentence was manifestly excessive – appeal dismissed.
Criminal Law Consolidation Act 1935 s 269O, s269P, s 269Q, s 269T, s 269V, s 269VA; Criminal Law (Sentencing) Act 1988 s 30, s 31, referred to.
R v Colson (1999) 73 SASR 407; R v Davey (2006) 95 SASR 63; R v Tzeegankoff (1998) SASC 6639; R v Weiss (2001) 214 LSJS 364, considered.

R v B, P
[2007] SASC 134
Court of Criminal Appeal: Doyle CJ, Debelle and Layton JJ

DOYLE CJ: I have had the benefit of considering the reasons of Debelle J and of Layton J.
I would dismiss the appeal against the sentence imposed by a Judge of this Court.
The appeal raises two issues. The first is whether the sentence imposed is invalid because it is contrary to the provisions of s 30 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). The second issue is whether the sentence is manifestly excessive.
Mr Niarchos, counsel for the appellant, submits that the sentence is invalid by reason of the fact that the Judge ordered that the head sentence and non-parole period were to commence on the expiration of the limiting term of five years to which the appellant was then subject (fixed under s 269O(2) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”)) or upon the appellant’s earlier release from detention (as a result of the Court exercising its power under s 269P of the CLCA in such a way as to bring about the release of the appellant from detention).
I agree with Layton J that the power conferred by s 269P remained available to be exercised after the Judge imposed the sentence and made the orders in question, even though the exercise of the power to order release from detention would result in the sentence of imprisonment imposed by the Judge coming into effect.
It is not necessary to decide what the position would have been had the Judge not made the orders that he made, contemplating the making of an application under s 269P. I acknowledge the force of the views expressed by Layton J on this matter, but prefer to leave this matter for decision when it is necessary to decide it.
The effect of the sentence and orders is that the Court has…

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 B, P

Details

AGLC: R v B, P [2007] SASC 134
Case: [2007] SASC 134
Decision Date: 20 April 2007

CaseChat Overview and Summary

The appellant in this case was convicted of several sexual offences and was sentenced to a period of imprisonment. The appellant was serving a period of detention under section 269O of the Criminal Law Consolidation Act 1935 at the time of sentencing. The appellant appealed against the sentence on the grounds that the sentencing judge did not have the power to make an order that the sentence would commence after the period of detention, and that the sentence was manifestly excessive. The appeal was dismissed by the court.

The legal issues before the court were whether the sentencing judge had the power to make an order that the sentence would commence after the period of detention, and whether the sentence was manifestly excessive. The court considered the relevant statutory provisions and case law to determine whether the sentencing judge had the power to make such an order. The court also considered the principles of sentencing and whether the sentence was manifestly excessive.

The court held that the sentencing judge did have the power to make an order that the sentence would commence after the period of detention. The court found that the statutory provisions did not preclude the sentencing judge from making such an order, and that the order was valid. The court also held that the sentence was not manifestly excessive, having regard to the seriousness of the offences and the appellant's criminal history. The court found that the sentencing judge had properly considered the relevant factors and had exercised their discretion in a reasonable manner.

The appeal was dismissed, and the original sentence was upheld. The court found that the sentencing judge had the power to make an order that the sentence would commence after the period of detention, and that the sentence was not manifestly excessive. The appellant's appeal was therefore unsuccessful.

Orders