R v COLE - [2010] SASCFC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COLE
[2010] SASCFC 13
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice David)
2 August 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
Appellant pleaded guilty in the District Court to three offences, one being assault - the sentences were ordered to be served cumulatively - sentencing judge started with a head sentence for the assault of 12 months.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant appeals again the sentence for assault on the ground that a starting point of 12 months is manifestly excessive.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
In sentencing submissions counsel for the appellant argued that the balance of any term of imprisonment should be suspended - sentencing judge did not make comment on suspension in the remarks - whether this constitutes an error in approach.
Appeal dismissed.
Criminal Law (Sentencing) Act 1935 (SA) s 18A, referred to.

R v COLE
[2010] SASCFC 13
Court of Criminal Appeal: Duggan, Anderson and David JJ

DUGGAN J. I agree that the appeal should be dismissed for the reasons given by Anderson J.
ANDERSON J.
Introduction
This is an appeal against sentence. A District Court judge sentenced the appellant for three offences involving his driving on 12 April 2009. The appellant pleaded guilty to aggravated causing harm by dangerous driving, assault, and failing to stop, assist and present himself to the police after an accident. The maximum penalties for these offences were:

Count 1

7 years with disqualification from holding a driver’s licence for 3 years or more in the court’s discretion

Count 2

2 years

Count 3
5 years with disqualification for a minimum of 1 year or a period in the court’s discretion

Background

The circumstances of the offending arise from Mr Cole’s driving. The details of what can only be described as a “road rage” incident are set out in the sentencing remarks of the judge appealed from. I adopt the background set out by the judge.
His Honour said:
The victim of your offending is Mr Schwarz. At about 8.20 pm on Sunday, 12 April 2009 he was riding a Honda motorcycle at Largs Bay. After refuelling on Victoria Road he was about to leave a service station when he noticed a white Holden approaching to his right in a southerly direction about to enter the service station. He stopped the motorcycle to allow the vehicle to travel in front. You were driving the Holden and passed in front of the motorcycle yelling and shaking your fist as you did so. The rider nodded, lifted his wrists off the handlebars and said ‘What’s your problem?’. Your counsel told me that you thought he had given you the finger. You…

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 COLE

Details

AGLC: R v Cole [2010] SASCFC 13
Case: [2010] SASCFC 13
Decision Date: 2 August 2010

CaseChat Overview and Summary

The appellant, R v Cole, was before the District Court and pleaded guilty to three offences, including assault. The sentencing judge imposed cumulative sentences, commencing with a head sentence of 12 months for the assault charge. The appellant appealed against this sentence, arguing it was manifestly excessive.

The central legal issue before the appellate court was whether the sentence imposed for the assault offence was demonstrably too severe, warranting appellate intervention. This required the court to consider the principles of sentencing and whether the judge had erred in their assessment of the appropriate penalty.

The appellate court, comprising Duggan, Anderson, and David JJ, reviewed the sentencing decision. While the specific reasoning is not detailed in the provided text, the appeal concerned the court's power to interfere with a sentence that is alleged to be manifestly excessive. The court would have considered the nature of the assault, the appellant's circumstances, and relevant sentencing guidelines to determine if the 12-month head sentence was appropriate.

Orders