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R v Draoui

R v Draoui

Case [2015] SASCFC 50 17 April 2015

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DRAOUI
[2015] SASCFC 50
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Bampton)
17 April 2015
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - PROCEDURE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY BASED ORDERS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
Appeal against refusal by a District Court Judge on application to revoke a supervision order under Part 8A of the Criminal Law Consolidation Act 1935 (SA).
The appellant was charged with 83 counts of false pretences, fraudulent misappropriation, forging and uttering cheques and fraud allegedly committed between April 2000 and May 2002.
The appellant subsequently suffered a Major Depressive Disorder rendering him mentally unfit to stand trial. The Judge found the objective elements of the charged offences were established and the appellant was mentally unfit to stand trial and declared him liable to supervision under Part 8A. The Judge made a supervision order and fixed a limiting term of 10 years. The Judge released the appellant on licence on conditions including that he undergo psychiatric monitoring and treatment as required and that he be under the supervision of a Community Corrections Officer.
The appellant applied for revocation of the supervision order on the ground, inter alia, that he had recovered from the Major Depressive Disorder that had rendered him unfit to stand trial. The Judge refused the application but relaxed the conditions of the supervision order.
The appellant appeals against the refusal to revoke the supervision order.
Held Blue J (Kelly and Bampton JJ agreeing):
1. On an application to revoke a supervision order, the paramount consideration is community safety (Advertiser Newspapers Ltd v V & Anor [2000] SASC 366 applied) (at [109]).
2.       On an application to revoke a supervision order, it will often be appropriate for the Judge to adopt a semi-inquisitorial approach (at [113]).
3.       On an application to revoke a supervision order, a Judge is not precluded from having regard to the conduct the subject of the charges or the applicant’s attitude to it in assessing the risk to the community of a repetition of that conduct merely because the applicant has not been convicted or found guilty of those charges (at [118]-[124]).
4.       The appellant was not denied procedural fairness in relation to the Judge’s declining to make three specific findings he was invited by the appellant to make. However, the appellant was denied procedure fairness in relation to the Judge’s overall assessment of the risk of repetition of his conduct the subject of the charges (at [134]-[142]).
5.       The Judge did not apply a test that a supervision order should not be revoked if there is any risk whatsoever to the community. However, the Judge did not provide adequate reasons articulating the risk to the community that he assessed (at [149]-[150]).
5.       The…

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 Draoui

Details

AGLC: R v Draoui [2015] SASCFC 50
Case: [2015] SASCFC 50
Decision Date: 17 April 2015

CaseChat Overview and Summary

The Court of Appeal of Victoria heard an appeal by the Director of Public Prosecutions (DPP) against the sentencing decision of a County Court judge in the case of R v Draoui. The DPP sought to challenge the judge's decision to impose a community correction order on the respondent, who had pleaded guilty to a charge of aggravated burglary.

The central legal issue before the Court of Appeal was whether the sentencing judge had erred in law by failing to give sufficient weight to the objective seriousness of the offence of aggravated burglary when imposing a non-custodial sentence. The DPP argued that the nature of the offence, involving an unlawful entry into a dwelling with intent to commit an indictable offence, warranted a custodial sentence, and that the judge had not adequately considered this in the sentencing determination.

The Court of Appeal allowed the DPP's appeal. The Court held that the sentencing judge had made an error of principle by placing undue emphasis on the subjective circumstances of the offender and the potential benefits of a community correction order, to the detriment of properly assessing the objective seriousness of the aggravated burglary. The Court reiterated that while subjective factors are important in sentencing, they must be balanced against the gravity of the offence, particularly in cases of serious crimes like aggravated burglary. Consequently, the Court found that the sentencing judge had failed to impose a sentence that was manifestly inadequate and disproportionate to the objective seriousness of the offending conduct.

The Court of Appeal set aside the community correction order and remitted the matter back to the County Court for re-sentencing.

Orders