R v Colbert - [2017] SASCFC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COLBERT
[2017] SASCFC 29
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Doyle)
12 April 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant's trucking company owned a 14 tonne Mitsubishi Tautliner truck. To the appellant's knowledge, the brakes on that truck were not functioning properly. On 5 March 2014 an employee driver of that truck was involved in a "near miss". On 7 March 2014 another employee driver of that truck had a fatal accident.
Following a trial by jury, the appellant was convicted of the offences of endangering life (count 1) and manslaughter (count 2), committed on 5 and 7 March 2014. The sentencing judge adopted notional starting points of five years imprisonment for count 1, and nine years imprisonment for count 2. Utilising s 18A of the Criminal Law (Sentencing) Act 1988, and having regard to the fact that the two offences occurred relatively close in time, and considerations of totality, the sentencing judge imposed a total head sentence of 12 years imprisonment. His Honour fixed a non-parole period of eight years and 11 months imprisonment. His Honour then reduced the head sentence and non-parole period by 18 months on account of time spent in custody and on home detention bail.
The appellant appeals against his sentence on the grounds that the sentence is manifestly excessive; that the sentencing judge failed to afford adequate weight to the appellant’s physical and mental health issues; and that the sentencing judge erred in attaching excessive weight to the appellant’s 1996 convictions for rape.
Held per Doyle J (Vanstone and Parker JJ agreeing), dismissing the appeal:
1. The sentence was not manifestly excessive, and no error has otherwise been established.
House v The King (1936) 55 CLR 499; R v Copeland (No 2) (2010) 108 SASR 398; R v Lutze (2014) 121 SASR 144; Lawler v The Queen (2007) 169 A Crim R 415, considered.

R v COLBERT
[2017] SASCFC 29
Court of Criminal Appeal: Vanstone, Parker and Doyle JJ

VANSTONE J: I would dismiss the appeal. I agree with the reasons of Doyle J.
PARKER J: I agree with the reasons of Doyle J. I would dismiss the appeal.
DOYLE J: This is an appeal against sentence.
Following a trial by jury, the appellant was convicted of the offences of endangering life (count 1) and manslaughter (count 2), committed on 5 and 7 March 2014.
At the time of the offending the appellant was the owner of Colbert Transport Pty Ltd, a trucking company that owned 11 rigid trucks, including the 14 tonne Mitsubishi Tautliner truck involved in the offending. The appellant had taken ownership of the trucking business from a Mr Sellars on 6 January 2014. Prior to that he had been a driver for Mr Sellers’ business,…

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 Colbert

Details

AGLC: R v Colbert [2017] SASCFC 29
Case: [2017] SASCFC 29
Decision Date: 12 April 2017

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by the applicant, Colbert, against his conviction for the offence of assault occasioning actual bodily harm. The dispute centred on the admissibility of certain evidence during the trial.

The primary legal issue before the Full Court was whether the trial judge had erred in admitting evidence of the applicant's prior convictions. Specifically, the Court had to determine if this evidence was relevant to the issues in the trial and, if so, whether its probative value outweighed its prejudicial effect, as required by the rules of evidence.

The Full Court reasoned that the prior convictions were not relevant to any issue in the trial and were therefore inadmissible. The Court held that the admission of this evidence had created a substantial risk of unfair prejudice to the applicant, as it was likely to lead the jury to infer that the applicant had a propensity to commit violent offences. Consequently, the Court found that the trial judge had erred in admitting the evidence.

The Full Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders