R v BEER - [2007] SASC 353

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BEER
[2007] SASC 353
Judgment of The Honourable Justice Gray
2 October 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
Application for permission to appeal against sentence - applicant convicted of one count of unlawful sexual intercourse and three counts of indecent assault - applicant sentenced to a head sentence of six and a half years with a three year non-parole period - completion of the application for legal aid was delayed due to applicant suffering from illness - applicant had no previous convictions - applicant aged 61 years at the time of sentencing - applicant is carer for his disabled sister - whether extension of time within which to file application for permission to appeal should be granted - whether it is reasonably arguable that the sentencing Judge failed to have adequate regard to the personal circumstances of the applicant - Held: permission granted to file application for leave to appeal out of time - permission granted to appeal against sentence.
Criminal Law Consolidation Act 1935 (SA) s 352 and s 357; Criminal Appeal Rules 1996 (SA) r 4A, referred to.
R v Raad (2006) 15 VR 338; R v Blick (1999) 108 A Crim R 525; R v Mai [2000] VSCA 184, considered.

R v BEER
[2007] SASC 353
Criminal
GRAY J

This is an application for permission to appeal against sentence. The applicant also seeks an extension of time within which to seek permission to appeal.
On 7 June 2007 the applicant was convicted of one count of unlawful sexual intercourse and three counts of indecent assault. The matter was adjourned to 5 July 2007 for sentencing submissions. On 16 July 2007 the applicant was sentenced to a head sentence of six and a half years with a three year non-parole period.
The applicant’s rights of appeal are set out in section 352(1) of the Criminal Law Consolidation Act 1935 (SA). An appeal lies as of right on a question of law alone, and with leave on any other ground.
Section 357 of the Act provides, inter alia, that an application for permission to appeal must be made in accordance with the appropriate rules of court. The time fixed by Rule 4A of the Supreme Court Criminal Appeal Rules 1996 (SA) for the lodging of a notice of appeal or notice of application for leave to appeal is within 21 days of the date of conviction, sentence or a decision antecedent to trial.
The applicant’s solicitor gave evidence by affidavit that he was instructed to appeal against sentence. He was instructed to apply to the Legal Services Commission for a grant of legal aid to conduct the appeal, as a consequence of the applicant’s financial resources being exhausted…

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 BEER

Details

AGLC: R v BEER [2007] SASC 353
Case: [2007] SASC 353
Decision Date: 2 October 2007

CaseChat Overview and Summary

The applicant in this case was convicted of one count of unlawful sexual intercourse and three counts of indecent assault and was sentenced to a head sentence of six and a half years with a three-year non-parole period. The applicant sought permission to appeal against the sentence, claiming that the sentencing judge failed to adequately consider his personal circumstances, including his age, health, and role as a carer for his disabled sister. The application for permission to appeal was delayed due to the applicant's illness, which impacted his ability to complete the application for legal aid. The court was required to determine whether the extension of time to file the application should be granted and whether it was reasonably arguable that the sentencing judge failed to have adequate regard to the personal circumstances of the applicant.

The legal issues before the court were whether the extension of time to file the application for leave to appeal should be granted and whether it was reasonably arguable that the sentencing judge failed to have adequate regard to the personal circumstances of the applicant. The court considered the delay in filing the application and the circumstances that contributed to the delay, including the applicant's illness. The court also examined the applicant's personal circumstances, including his age, health, and role as a carer for his disabled sister, and whether these circumstances were adequately considered by the sentencing judge.

The court granted permission for the applicant to file the application for leave to appeal out of time and to appeal against the sentence. The court found that the delay in filing the application was due to circumstances beyond the applicant's control, namely his illness. The court also found that it was reasonably arguable that the sentencing judge failed to have adequate regard to the personal circumstances of the applicant, including his age, health, and role as a carer for his disabled sister. The court concluded that these circumstances were significant and should have been given greater weight in the sentencing process.

The final orders of the court were that permission was granted to the applicant to file an application for leave to appeal out of time and to appeal against the sentence. The applicant was also granted an extension of time to file the application for leave to appeal. The court emphasised the importance of considering the personal circumstances of the applicant in the sentencing process and the need for sentencing judges to give adequate regard to such circumstances.

Orders