R v Carr - [2008] SASC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CARR
[2008] SASC 125
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Anderson)
13 May 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING
Appeal against sentence imposed by District Court - appellant originally charged with nine offences - pleaded guilty to two counts of common assault and one count of threaten life - nolle prosequi entered on remaining six counts - sentenced to 2 years and 5 months imprisonment with non-parole period of 12 months - whether sentence manifestly excessive - whether proper allowance was made for previous periods in custody and on home detention bail - whether an error made in consideration of appellant's prospects for rehabilitation - whether sentencing judge erred in failing to suspend the sentence.
Held: Appeal allowed - reduction in both head sentence and non-parole period - no suspension of sentence.
Criminal Law Consolidation Act 1935 (SA) s 19(1) and s 39; Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(ed), s 10(1)(o), s 18A and s 30(2)(a), referred to.
R v Malesevic (1999) 204 LSJS 32; R v Allen [1999] SASC 346; R v Nguyen [2004] SASC 405; R v Parisi (2003) 86 SASR 183, discussed.
R v Hamid (2006) 164 A Crim R 179; Papastamatis v Police (2003) 85 SASR 241; Mitchell v Police (2007) 99 SASR 296; R v Morse (1975) 23 SASR 98, considered.

R v CARR
[2008] SASC 125
Court of Criminal Appeal: Doyle CJ, Bleby and Anderson JJ

DOYLE CJ. I agree with the orders proposed by Anderson J and with his reasons. There is nothing that I wish to add.
BLEBY J. I also agree with the orders proposed by Anderson J and with his reasons.
ANDERSON J:
Introduction
This is an appeal against a sentence imposed by a judge in the District Court. The appellant was originally charged with nine offences and when the appellant pleaded guilty to three of those offences the prosecution entered a nolle prosequi on the remaining six counts.
The three offences to which the appellant pleaded guilty were two counts of common assault contrary to s 39 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) and one count of threatening life contrary to s 19(1) of the Act.
After the judge made a reduction for the pleas of guilty and remorse, the appellant was sentenced to two years and five months imprisonment with a non-parole period of twelve months. The judge imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”).
The two issues to be decided in this matter are whether the sentence is manifestly excessive having regard to…

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 Carr

Details

AGLC: R v Carr [2008] SASC 125
Case: [2008] SASC 125
Decision Date: 13 May 2008

CaseChat Overview and Summary

The case of R v Carr concerns an appeal against the sentence imposed by the District Court. The appellant, who was originally charged with nine offences, pleaded guilty to two counts of common assault and one count of threatening life. The remaining six counts were dismissed by nolle prosequi. The appellant was sentenced to two years and five months imprisonment with a non-parole period of twelve months. The appeal challenges the sentence's severity, alleging errors in the sentencing approach, and questions whether the sentence should have been suspended.

The central legal issues in this appeal revolve around the assessment of the sentence's proportionality in light of the appellant's submissions regarding errors in the sentencing process. These include the alleged failure to adequately consider the appellant's previous periods in custody and on home detention bail, and potential missteps in evaluating the appellant's prospects for rehabilitation. Additionally, the appeal questions whether the sentencing judge erred in not suspending the sentence.

The Court found that the sentence was indeed manifestly excessive. The reasoning included the failure to appropriately consider the appellant's prior periods in custody and on home detention bail, and an error in evaluating the appellant's prospects for rehabilitation. Despite these findings, the Court determined that there was no basis to suspend the sentence. Consequently, the appeal was allowed, resulting in a reduction of both the head sentence and the non-parole period.

The final orders of the Court were to reduce the appellant's sentence, specifying the new head sentence and non-parole period, but maintaining the original decision not to suspend the sentence.

Orders

Orders of the court

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Background

Background to the litigation

The two issues to be decided in this matter are whether the sentence is manifestly excessive having regard to what the appellant submits are errors in the sentencing approach, and whether the sentence should have been suspended.Background The appellant and the victim had lived together for about 23 years. They were married in 1990. It was agreed by the defence and the prosecution that the sentencing should take place against a background of other incidents in the relationship between the appellant and the victim in which the appellant had abused the victim over a period of years. I will use the words of the sentencing judge in describing the incidents which led to the charges to which the appellant pleaded guilty.The first count of common assault, that is count 2 on the Information, occurred in 1993 at Ms Carr’s sister’s house at Happy Valley. Ms Carr stated that you had been drinking. After having a family discussion about property matters at the house, Ms Carr’s sister asked if you and your wife wanted to stay for coffee. You stated that you wanted to go. Ms Carr stated that she wanted to stay for coffee. You then slapped Ms Carr across the face. Ms Carr described your actions as a hard slap across the face, which caused her to stagger as it occurred. Ms Carr’s sister then told you to get out, walking you to the front door, and would not let Ms Carr return home with you. You left and Ms Carr stayed with her sister for that night before returning home the following day. Ms Carr stated that you were remorseful about your actions and later apologised to her and her family for your assault upon her.The second count of common assault, that is count 3 on the Information, occurred in February, 2005 when you were watching television with Ms Carr at your home. Ms Carr commented on a television programme you were watching. She told you how disgusting she found it when an actor spat on another in the television programme. Later in the evening you spat in a manner that Ms Carr describes as “full on” in her face. You then went to bed.The final count of threatening life, that is count 5 on the Information, occurred in March, 2006 at your home at Nairne. You told Ms Carr to leave and get out of the house. Ms Carr responded by telling you that in order to do that she would need to find somewhere for her and your son David to live. You replied by saying that David was to stay with you and that Ms Carr could not take David anywhere. Ms Carr responded with the phrase “Over my dead body”. You then went into the kitchen, took the carving knife out of the knife block, returned to the family room and held the knife to Ms Carr’s throat whilst threatening, “Well, that can be arranged”. Your son David was watching whilst this was occurring. Your son was hysterical and screaming at you “Stop it, stop it”. Your son stood up from sitting on the lounge suite, and ran to the front door. When you heard the door open you then took the knife away from Ms Carr’s throat. Ms Carr chased after David who was standing in the middle of the front lawn. She picked him up and took him to the back of the house and sat in the garden with him. You went back into the study and did not talk about what happened. Ms Carr states that David would often talk about this incident, ask her questions about why you did this, and was concerned that you were going to kill his mother.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ BLEBY J

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Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ, BLEBY J

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