R v Celani - [2012] SASCFC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CELANI
[2012] SASCFC 134
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)
14 December 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - OTHER CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant pleaded guilty to one count of aggravated causing serious harm by dangerous driving and one count of aggravated causing harm by dangerous driving - both offences arose out of the same conduct - appellant was sentenced to three years imprisonment with a non-parole period of 12 months and licence disqualification of ten years.
Appeal against sentence - whether the Judge erred in failing to suspend the sentence of imprisonment - whether the sentence was manifestly excessive.
Held: appeal dismissed - the relevant question is whether there has been a patent or latent error in the exercise of the discretion to suspend the sentence - no such error has been demonstrated - the Judge made no error in refusing to suspend the sentence of imprisonment in the exercise of his discretion - the sentence is not manifestly excessive.
Road Traffic Act 1961 (SA) s 47BA, referred to.

R v CELANI
[2012] SASCFC 134
Court of Criminal Appeal: Kourakis CJ, Peek and Nicholson JJ

KOURAKIS CJ: On 6 February 2012 the appellant pleaded guilty in the Magistrates Court to a charge of aggravated causing serious harm by dangerous driving and another of aggravated causing harm by dangerous driving. Both offences arose out of the same conduct and were committed on 14 July 2010. The offences were aggravated because the appellant was, at the time, driving a vehicle in contravention of s 47BA of the Road Traffic Act 1961 (SA) which proscribes driving a vehicle whilst a prescribed drug is present in the blood of the driver. In this case, the drug was tetrahydracannabinol.
The appellant was committed to the District Court where, on 27 September 2012, he was sentenced to three years imprisonment with a non-parole period of 12 months. His licence was disqualified for ten years.
The appellant appeals against his sentence on the ground that the Judge erred in failing to suspend the sentence of imprisonment and on the ground that the sentence was manifestly excessive.
I would dismiss the appeal. My reasons follow.
The offence
On 12 July 2010 the appellant turned 29. On the next day, 13 July 2010, he celebrated his birthday late into the night and into the early hours of the following morning. He drank alcohol and smoked cannabis. After just two hours sleep, he rose to start work as a forklift driver at the IGA warehouse in Kidman Park at 7.30 am.
On his own admission the appellant still felt hung over and was very tired while he was at work. For his lunch break…

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 Celani

Details

AGLC: R v Celani [2012] SASCFC 134
Case: [2012] SASCFC 134
Decision Date: 14 December 2012

CaseChat Overview and Summary

The appeal in *R v Celani* was brought before the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Peek and Nicholson JJ. The appellant had pleaded guilty to two charges: aggravated causing serious harm by dangerous driving and aggravated causing harm by dangerous driving, both stemming from the same incident. The sentencing judge imposed a term of three years imprisonment with a non-parole period of 12 months, and disqualified the appellant from holding a driver's licence for ten years. The appeal concerned the judge's decision regarding the suspension of the imprisonment term and whether the overall sentence was manifestly excessive.

The central legal issues before the Full Court were whether the sentencing judge had erred in exercising their discretion by failing to suspend the sentence of imprisonment, and consequently, whether the imposed sentence was manifestly excessive in the circumstances.

The Full Court held that the appeal should be dismissed. The Court reasoned that the appropriate test for interference with the exercise of discretion regarding sentence suspension is whether there was a patent or latent error. Applying this test, the Court found that no such error had been demonstrated in the sentencing judge's refusal to suspend the sentence. Furthermore, the Court concluded that the sentence imposed was not manifestly excessive, affirming the judge's exercise of discretion.

Orders