R v Dransfield

Case [2016] SASCFC 68

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DRANSFIELD

[2016] SASCFC 68

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Doyle)

2 June 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

Appeal against sentence. The respondent was charged with the offence of recklessly causing serious harm to another, contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA). The circumstances of the offending were that the respondent had intervened in a disagreement between a food van vendor and the victim and, despite the victim not acting aggressively, the respondent punched the victim in the head. The victim lost consciousness and was severely injured. The respondent pleaded guilty and the Judge sentenced the respondent to imprisonment for five months, commencing on 14 April 2016.

The Director of Public Prosecutions has sought leave to appeal against the sentence on four grounds: first, that the sentence imposed is manifestly inadequate; second, that the Judge erred in imposing a discount of 40 per cent for the guilty plea; third, that the Judge erred in giving a separate discount or allowance as a consequence of the respondent making a payment towards compensation; and fourth, that the Judge erred by failing to sentence on the basis that the respondent was reckless as to causing serious harm.

Held per Nicholson J (Peek and Doyle JJ agreeing):

1. The Judge erred in the approach adopted with respect to the question of recklessness.

2. The Judge erred in imposing a discount of 40 per cent  for the guilty plea and by providing a separate discount or allowance for the making of a payment towards compensation.

3. In the circumstances, the sentence imposed by the Judge is manifestly inadequate.

4. Application for permission to appeal is granted and the appeal is allowed. The District Court sentence is set aside. The respondent is resentenced to a head sentence of two years, one month and one week, with a non-parole period of ten months, both backdated to commence on 14 April 2016.

Criminal Law Consolidation Act 1935 (SA) s 21, s 23, s 24, s 340; Criminal Law (Sentencing) Act 1988 (SA) s 10A, s 10B, s 10C, referred to.
Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Place [2002] SASC 101, (2002) 81 SASR 395; R v Nemer [2003] SASC 375, (2003) 87 SASR 168; R v Harkin [2011]…

Continue reading R v Dransfield

Sign in free to access the full text

Details
AGLC
R v Dransfield [2016] SASCFC 68
Case
[2016] SASCFC 68
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the Director of Public Prosecutions against a sentence imposed on an offender. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Doyle CJ, Nicholson J, and Peek J.

The central legal issue before the court was the application of the principle of double jeopardy in the context of Crown appeals against sentence, specifically whether this principle restricted the Court of Criminal Appeal's power to resentence an offender. The court was required to interpret section 340 of the *Criminal Law Consolidation Act 1935* (SA) and its interaction with the general principles governing appeals.

The court reasoned that while the principle of double jeopardy traditionally restricted the Director's ability to appeal sentences with a view to increasing them, section 340 of the *Criminal Law Consolidation Act 1935* had modified this position. The court held that section 340 was designed to remove the issue of double jeopardy from consideration at the stage of resentencing by the Court of Criminal Appeal, after permission to appeal had been granted and the appeal itself allowed. The court concluded that the words "Despite any other rule of law" in section 340 meant that the court was not precluded from imposing a sentence it considered appropriate, even if it was more severe than the original sentence, and that the principle of double jeopardy should not temper the resentencing process.

The court found that the grounds of appeal had been established, granting permission to appeal and allowing the appeal. The purpose of this was to correct and maintain proper sentencing principles and to address a sentence that was so significantly below the appropriate range that its retention would undermine public confidence in the administration of justice.

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

PEEK J NICHOLSON J
Doyle CJ observed the following in R v Nemer.[12]Deeply entrenched in our system of criminal justice is a principle that the accused or the offender should not be exposed to double jeopardy. The principle is not a precise one. It manifests itself in various ways. ... In the area of sentencing it manifests itself in the restriction ... on appeals by the Director with a view to increasing a sentence. Exposure to the risk of having a sentence increased, and in particular to the risk of facing a sentence of imprisonment on appeal for the first time, is said to be a form of double jeopardy. The application of this principle in this State has been confined by section 340 of the Criminal Law Consolidation Act 1935. Section 340 has been interpreted such that the principle of double jeopardy continues to apply with respect to the questions of whether permission to appeal should be allowed and whether the appeal itself should be allowed but the principle is no longer to apply at the stage of any resentencing by the Court of Criminal Appeal. For example, in R v Harkin[13] Gray and Sulan JJ said this.The Second Reading Speech indicates that s 340 was designed to remove the issue of double jeopardy from consideration by the appeal court. However, the words of the section make it clear that s 340 only imposes a duty on the court at the point after the question of the grant of permission to appeal and the question of whether the appeal should be allowed have been decided. Section 340 precludes the court from having regard to the “rule of law”, known as double jeopardy when resentencing. The words “Despite any other rule of law” should be presumed to have some work to do and should be given some meaning and effect.[14] In our view, the effect of s 340 is to remove from consideration any rule of law enabling a court to impose, when resentencing, a sentence other than the sentence which the court thinks ought to have been imposed at first instance.If ss 340 and 353(4)(a)(i) are read together, and given that it is to be presumed that s 340 has some work to do, that work, in our view, is to remove the court’s ability to temper a sentence in recognition of the element of double jeopardy involved in twice standing for sentence.White J in a separate judgment concurring in the result arrived at the same construction of section 340.[15] [12] R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at [26].[13] R v Harkin [2011] SASCFC 24; (2011) 109 SASR 334 at [35]-[37].[14] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].[15] R v Harkin [2011] SASCFC 24; (2011) 109 SASR 334 at [98]-[106]. See also, for example, the discussion in similar terms by Sulan J in R v Reed [2013] SASCFC 16 and by Peek J (with whose reasons Stanley and Nicholson JJ agreed) in R v McPartland and Polkinghorne [2014] SASCFC 84 at [16].Conclusions as to disposition of the appeal I am satisfied that each of the appeal grounds 1 to 4 has been established.[16] I agree with the applicant’s submissions that permission to appeal should be granted and the appeal allowed:(i)to correct and maintain proper sentencing principles; and(ii)to correct a sentence which is so far below the appropriate range that to allow it to stand would shake public confidence in the administration of justice.[16] Grounds 2 and 3 follow from my adoption of meaning A as discussed earlier.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J, NICHOLSON J

Full text does not contain this section.