R v DAVEY - [2004] SASC 339

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAVEY
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)
29 October 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Application for leave to appeal referred to Full Court for determination following refusal of leave by single judge – applicant charged with six counts of rape and one count of false imprisonment – applicant on parole at time of offending – plea of guilty during course of trial – sentence of imprisonment for 19 years imposed for current offences – held not arguable that sentence manifestly excessive.
Held further that structure of sentence not in accordance with provisions of Correctional Services Act 1982 and Criminal Law (Sentencing) Act 1988 – sentencing judge backdated sentence and non-parole period to date of arrest - statutory provisions require balance of the parole period to be served from date on which applicant sentenced on current offences – penalty for current offences to be served cumulatively upon balance of previous sentence – non-parole period to be calculated by reference to combined sentences – application for leave to appeal against sentence granted, appeal allowed and sentence adjusted in accordance with statutory requirements.
Correctional Services Act 1982 s 75; Criminal Law (Sentencing) Act 1988 ss 31, 32, referred to.
R v Bartels (1986) 44 SASR 260, applied.

R v DAVEY
[2004] SASC 339
Court of Criminal Appeal

Duggan, Bleby and Anderson JJ: The applicant has asked for the application for leave to appeal against sentence in this matter to be referred to the Full Court for determination following the refusal of leave by a single judge.
The applicant and a co-accused were charged with six counts of rape and one count of false imprisonment. Both pleaded not guilty at the commencement of the trial, but changed their pleas to guilty after the complainant gave evidence.
The facts are set out in detail in the remarks of the learned sentencing judge and it is unnecessary to repeat all that he said. The applicant and his co-accused had not met the complainant before this series of incidents. After meeting her in a hotel they enticed her, by means of a subterfuge, to the house in which they were living. The complainant, who has a serious sight defect, was accompanied by her three year old daughter.
At the house the applicant and the co-accused detained the complainant against her will for approximately three hours and subjected her to a series of degrading sexual acts which were accompanied with force and threats to kill.
The applicant has a criminal history and was on parole at the time of the offences. The learned sentencing judge imposed a global head sentence of imprisonment for 19 years after deducting one year for the late plea of guilty.
We are of the opinion that it is not arguable that…

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 DAVEY

Details

AGLC: R v DAVEY [2004] SASC 339
Case: [2004] SASC 339
Decision Date: 29 October 2004

CaseChat Overview and Summary

Davey applied for leave to appeal against his sentence, which was initially refused by a single judge. The applicant, who was on parole at the time of the offending, had entered a plea of guilty during the course of a trial in which he was charged with six counts of rape and one count of false imprisonment. The sentence imposed was imprisonment for 19 years for the current offences. The Full Court was asked to determine whether the sentence was manifestly excessive and if the structure of the sentence complied with the statutory requirements.

The court examined whether the sentence was manifestly excessive and found that it was not. Further, the court examined the structure of the sentence and whether it complied with the provisions of the Correctional Services Act 1982 and the Criminal Law (Sentencing) Act 1988. The sentencing judge had backdated the sentence and the non-parole period to the date of arrest, but the statutory provisions require that the balance of the parole period be served from the date on which the applicant is sentenced on the current offences. The penalty for the current offences is to be served cumulatively upon the balance of the previous sentence, and the non-parole period is to be calculated by reference to the combined sentences.

The Full Court granted leave to appeal against the sentence and allowed the appeal. The sentence was adjusted in accordance with the statutory requirements, and the non-parole period was recalculated accordingly. The applicant's sentence was reduced, and the non-parole period was adjusted to reflect the correct application of the statutory provisions. The court's decision ensures that the sentence imposed is in accordance with the law and that the applicant's rights are protected.

Orders