R v Clark - [2014] SASCFC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLARK
[2014] SASCFC 104
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Bampton)
24 September 2014
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OTHERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE
Appeal against decision to impose an immediate custodial sentence – appellant pleaded guilty to criminal trespass in a place of residence and aggravated recklessly causing serious harm – appellant was primary carer for her autistic daughter and her mother – whether effect of custodial sentence on dependants was taken into account – whether fresh evidence should be received in relation to the effect on dependants – whether sentencing Judge erred in declining to suspend the sentence.
Held: No error identified – Judge properly took into account the issue of hardship to dependants – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 170A(1), s 23(3); Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(n), referred to.
R v Penno [2004] SASC 354; R v Wirth (1976) 14 SASR 291; R v Adami (1989) 51 SASR 229; Neill v Police [1999] SASC 270, considered.

R v CLARK
[2014] SASCFC 104
Court of Criminal Appeal: Peek, Blue and Bampton JJ

PEEK J: I would dismiss the appeal. I agree with the reasons of Bampton J.
BLUE J: I agree with Bampton J.
BAMPTON J: The appellant, Ms Clark, pleaded guilty to one count of criminal trespass in a place of residence and one count of aggravated recklessly causing serious harm contrary to section 170A(1) and section 23(3) of the Criminal Law Consolidation Act 1935 (SA) respectively.
The maximum penalty for criminal trespass in a place of residence is imprisonment for three years. The maximum penalty for aggravated recklessly causing serious harm is imprisonment for 19 years.
Ms Clark was sentenced to imprisonment for three years and four months with a non-parole period of 18 months.[1] The sentencing Judge declined to suspend the sentence.
[1] The endorsement records that a head sentence of imprisonment for three years and four months and a non-parole period of 18 months was imposed. The sentencing Judge has confirmed that his sentencing remarks incorrectly refer to a head sentence of imprisonment for three years.
Ms Clark appeals by permission against the sentence on the ground that it is manifestly excessive and in particular that the sentencing Judge erred in not suspending the sentence of imprisonment.
The offending
Ms Clark had been in a relationship with Mr Gee. The relationship was marked by domestic violence and Ms Clark eventually sought, and was granted, a restraining order against Mr Gee.
Early in the morning of 8 June 2012, Ms Clark received a phone call from the Holden Hill police station advising that Mr Gee had been arrested and bailed with respect to unrelated offences.…

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 Clark

Details

AGLC: R v Clark [2014] SASCFC 104
Case: [2014] SASCFC 104
Decision Date: 24 September 2014

CaseChat Overview and Summary

The appeal concerned a sentence imposed by a sentencing judge on the appellant, who had pleaded guilty to criminal trespass in a place of residence and aggravated recklessly causing serious harm. The appellant sought to appeal against the decision to impose an immediate custodial sentence.

The central legal issues before the court were whether the sentencing judge had erred in failing to adequately take into account the significant hardship that an immediate custodial sentence would impose on the appellant's dependants, namely her autistic daughter and her mother, for whom she was the primary carer. Relatedly, the court considered whether fresh evidence, pertaining to the impact of the custodial sentence on these dependants, should have been received and whether the sentencing judge was correct in declining to suspend the sentence.

The court found no error in the sentencing judge's decision. It was held that the judge had properly considered the issue of hardship to the appellant's dependants when determining the sentence. The court concluded that the sentencing judge had not erred in their assessment of the relevant factors and therefore dismissed the appeal.

Orders