Legal Research
Cases
R v Curry

R v Curry

Case [2016] SASCFC 16 3 March 2016

Type to search within this case.

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CURRY
[2016] SASCFC 16
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Nicholson)
3 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - POSSESSION FOR SALE OR SUPPLY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - FALSE IMPRISONMENT AND UNLAWFUL DETENTION
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - INTERFERENCE WITH WITNESSES OR JURORS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - PERJURY AND FALSE STATEMENT - FALSITY - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION - GENERALLY
Appeal against sentence. The appellant pleaded guilty to a number of offences and was sentenced by a Judge of the District Court on counts including failure to secure ammunition, possess prescription drug without prescription, multiple breaches of bail, unlawful possession, aggravated robbery, false imprisonment, attempt to dissuade witness from attending judicial proceedings, induce person to make a false statement under oath and multiple breaches of bond.
The Judge imposed a total head sentence of 13 years and three months, and a non-parole period of eight years.
The appellant appealed on the grounds that the head sentence and non-parole period was manifestly excessive, and that the Judge failed to give consideration to the principle of totality.
Held per Kourakis CJ, dismissing the appeal
1. The starting point was not excessive (at [4]).
2. The sentence imposed by the Judge was wholly concurrent with the relatively low sentence for the unlawful imprisonment (at [4]).
Held per Stanley J (Nicholson J agreeing), dismissing the appeal:
1. The starting point was not manifestly excessive (at [33]).
2. The non-parole period should not be reduced in order to maintain the ratio between the non-parole period and the head sentence (at [35]).
3. It was not established that the Judge failed to take into account the principle of totality (at [46] - [49]).
Criminal Law (Sentencing) Act 1988 (SA) s 10B, s 10C, referred to.
R v Place (2002) 81 SASR 395; R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 221; The Queen v Morse (1979) 23 SASR 98; R v Shannon (1979) 21 SASR 442; R v Jackson [2014] SASCFC 118; R v Creed (1985) 37 SASR 566; R v Miller (2000) 76 SASR 151; R v Shrestha (1991) 173 CLR 48; Bugmy v The Queen (1990) 169 CLR…

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 Curry

Details

AGLC: R v Curry [2016] SASCFC 16
Case: [2016] SASCFC 16
Decision Date: 3 March 2016

CaseChat Overview and Summary

The appeal concerned the sentencing of the applicant, R v Curry, before the Full Court of the Supreme Court of South Australia. The applicant sought to appeal against the sentence imposed by a single judge.

The central legal issue before the Full Court was whether the sentencing judge had erred in the approach taken to sentencing, specifically whether the sentence imposed was manifestly excessive or inadequate. This involved a review of the sentencing judge's considerations in relation to multiple offences, including drug possession for sale or supply, false imprisonment, robbery, and offences relating to the administration of justice and offensive weapons.

The Full Court, comprising Kourakis CJ, Stanley and Nicholson JJ, found no error in the approach taken by the sentencing judge. The court determined that the sentencing judge had properly considered all relevant factors and applied the correct legal principles in imposing the sentence.

Consequently, the appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J (dissent)

In my view, there is no error demonstrated in the approach taken by the sentencing judge. I would dismiss this ground of the appeal.Conclusion I would dismiss the appeal. I agree the appeal should be dismissed for the reasons given by Stanley J. I agree with the additional observations of the Chief Justice.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

Actions

Citations

R v Curry [2016] SASCFC 16

Most Recent Citation

R v Ghazaryan [2016] SASCFC 140

Cases Citing This Decision

Trott-Dan v The King [2023] SASCA 2
Citation 1 (Para 21)

…SR 258 at [52] per Vanstone J (with whom White J agreed) citing R v Shrestha (1991) 173 CLR 48 at 68-9 per Deane, Dawson and Toohey JJ; R v Curry [2016] SASCFC 16 at [38] per Stanley J; R v Palmer [2016] SASCFC 34 at [26] per Kourakis CJ. [37] R v Shrestha (1991) 173 CLR 48 at 68-69 per Dean, Dawson and Toohey JJ ;…
Giordimania v The Queen [2020] SASCFC 28
Citation 2 (Para 14)

…in the case of armed robberies of ordinary civilians or individuals, as opposed to businesses.[16] [15] R v Place (2002) 81 SASR 395. [16] R v Curry [2016] SASCFC 16 at [3]; Mann v The Queen [2019] SASCFC 155 at [65], [79]-[80].…
R v HOPPER [2018] SASCFC 53
Citation 3 (Para 19)

…ed robberies committed by those types of offenders is in the order of six to eight years imprisonment. [11] [2002] SASC 101; (2002) 81 SASR 395. [12] [2016] SASCFC 16. [13] [2002] SASC 101; (2002) 81 SASR 395 at [100].…
R v Ghazaryan [2016] SASCFC 140
Citation 4 (Para 11)

…ion omitted] [2] (1936) 55 CLR 499 at 504-5. [3] (2005) 228 CLR 357 at [25]. See also R v Jongewaard (2009) 266 LSJS 283 at [40]; R v Curry [2016] SASCFC 16 at [25].…

See all citing cases →

Cases Cited

R v Shannon [2019] NSWDC 942
Citation 1 (Para 3)

…ercise of the sentencing judge’s discretion.[11] The enactment of s 10B and s 10C has significantly circumscribed that discretion. [11] R v Shannon (1979) 21 SASR 442 at 452 – 453.…
R v Jackson [2014] SASCFC 118
Citation 2 (Para 6)

…uired.[14] This is a case where the circumstances of the offending warranted a higher sentence than the usual tariff provided for in Place . [12] [2014] SASCFC 118. [13] [2014] SASCFC 118 at [16]. [14] [2014] SASCFC 118 at [13] – [14].…
R v Kreutzer [2013] SASCFC 130
Citation 3 (Para 19)

…s take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal. [5] [1936] HCA 40, (1936) 55 CLR 499. [6] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215. Manifestly excessive?…
R v Copeland (No 2) [2010] SASCFC 61
Citation 4 (Para 17)

…severity brought about by the significantly longer period the defendant will be required to spend in prison. (Emphasis added.) [23] [2010] SASCFC 31, (2010) 108 SASR 398. [24] [2010] SASCFC 31 at [103], (2010) 108 SASR 398 at 425.…
R v BOTTERILL [2010] SASCFC 31
Citation 5 (Para 17)

…of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison. (Emphasis added.) [23] [2010] SASCFC 31, (2010) 108 SASR 398. [24] [2010] SASCFC 31 at [103], (2010) 108 SASR 398 at 425.…
R v Jongewaard [2009] SASC 346
Citation 6 (Para 18)

…f error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”. [3] [2009] SASC 346, (2009) 266 LSJS 283. [4] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.…
The Queen v Morse [2009] NZCA 51
Citation 7

…referred to. R v Place (2002) 81 SASR 395; R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 221; The Queen v Morse (1979) 23 SASR 98; R v Shannon (1979) 21 SASR 442; R v Jackson [2014] SASCFC 118; R v Creed (1985) 37 SASR 566; R v Miller (2000) 76 SASR 151; R v Shrestha…
Markarian v The Queen [2005] HCA 25
Citation 8 (Para 18)

…propriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]: As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage…
R v B, RWK [2005] SASC 84
Citation 9 (Para 18)

…er reduction in what is otherwise an appropriate sentence. The totality principle is one that will apply in relatively infrequent circumstances. [25] [2005] SASC 84 at [16], (2005) 91 SASR 200 at 203.…
Johnson v The Queen [2004] HCA 15
Citation 10 (Para 21)

…t expressed a preference for the former method[28] and that preference was reinforced in Johnson v The Queen. [29] [28] (1988) 166 CLR 59 at 63. [29] (2004) 78 ALJR 616.…
R v Place [2002] SASC 101
Citation 11 (Para 2)

…ous employees and customers. The applicable range is calculated to effectively deter offences which were once more prevalent than they are today. [1] (2002) 81 SASR 395.…
Postiglione v the Queen [1997] HCA 26
Citation 12 (Para 15)

…merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect. [20] [1997] HCA 26, (1997) 189 CLR 295. [21] [1997] HCA 26, (1997) 189 CLR 295 at 307.…
R v Shrestha [1991] HCA 26
Citation 13 (Para 11)

…Parole Board to assess the prisoner’s suitability for parole when the time comes.[19] [16] [2000] SASC 16 at [42], (2000) 76 SASR 151 at 160. [17] [1991] HCA 26, (1991) 173 CLR 48 at 68-69. [18] Bugmy v The Queen [1990] HCA 18, (1990) 169 CLR 525 at 531; R v Moyle (1996) 186 LSJS 462 at 465. [19] R v Miller [20…
Bugmy v The Queen [1990] HCA 18
Citation 14

…annon (1979) 21 SASR 442; R v Jackson [2014] SASCFC 118; R v Creed (1985) 37 SASR 566; R v Miller (2000) 76 SASR 151; R v Shrestha (1991) 173 CLR 48; Bugmy v The Queen (1990) 169 CLR 525; R v Moyle (1996) 186 LSJS 462; Postiglione v R (1997) 189 CLR 295; R v Copeland (No. 2) (2010) 108 SASR 398; R v B, RWK (2005) 91 SASR 2…
Mill v The Queen [1988] HCA 70
Citation 15

…CLR 525; R v Moyle (1996) 186 LSJS 462; Postiglione v R (1997) 189 CLR 295; R v Copeland (No. 2) (2010) 108 SASR 398; R v B, RWK (2005) 91 SASR 200; Mill v The Queen (1988) 166 CLR 59, considered.…
House v R [1936] HCA 40
Citation 16 (Para 18)

…quiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extra…
R v Miller [2000] SASC 16
Citation 17 (Para 11)

…od as against a head sentence[18] and the ability of the Parole Board to assess the prisoner’s suitability for parole when the time comes.[19] [16] [2000] SASC 16 at [42], (2000) 76 SASR 151 at 160. [17] [1991] HCA 26, (1991) 173 CLR 48 at 68-69. [18] Bugmy v The Queen [1990] HCA 18, (1990) 169 CLR 525 at 531; R…
House v The King 63 WN 176
Citation 18 (Para 18)

…judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer al…

Legislation Cited

Criminal Law (Sentencing) Act 1988 (SA) 10B
2 mentions (from Para 3)