R v FORREST (No 2) - [2016] SASCFC 91

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FORREST (No 2)
[2016] SASCFC 91
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Lovell)
24 August 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - GENERALLY
The appellant was charged with 13 offences committed during the course of three violent home invasions in June 2013. The appellant pleaded guilty to two offences which related to the second (Valley View) home invasion. The appellant also pleaded guilty to the offence of making use of fabricated evidence.
The appellant was convicted by jury of nine counts relating to the first (Ottoway) and third (Woodville Gardens) home invasions.
The learned trial Judge proceeded in sentencing the appellant by using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose separate sentences in relation to the three home invasion convictions and the fabricated evidence conviction. The appellant also had an unexpired balance of a previous sentence to serve by reason of the above offending breaching his parole. The unexpired portion of parole of four years, one month and 19 days was ordered to be served cumulatively upon the total head sentence imposed of 30 years and eight months’ imprisonment.
The Judge reduced the head sentence and non-parole period by five years on account of totality, to a head sentence of 29 years, nine months and 19 days and a non-parole period of 16 years was fixed.
Judgment previously delivered allowing the appeal against convictions relating to the first and third home invasions, and remitting those nine counts for retrial.
Both the appellant and the Crown instituted appeals against the sentence imposed by the Judge but were never heard and were awaiting determination of the conviction appeal.
Whether the Court has the power, upon allowing an appeal against conviction, to quash sentences for convictions not the subject of that appeal against conviction.
Held per the Court:
1. The sentence is set aside.
2. The sentence on counts 8 and 9 of the information and the fabricated evidence conviction is remitted to a single Judge of this Court for re-sentencing.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 353, s 354, referred to.

R v FORREST (No 2)
[2016] SASCFC 91
Court of Criminal Appeal: Kourakis CJ, Kelly and Lovell JJ

THE COURT: On 28 July 2016, this Court allowed the appellant’s appeal against convictions on:
·two counts of aggravated serious criminal trespass in a place of residence (counts 1 and 10);
·one count of attempted murder (count 11);
·one count of aggravated endangering life (count 3);
·three counts of aggravated robbery (counts 4, 6, and 13);
·one count of aggravated causing serious harm with intent to cause serious harm (count 5); and
·one count of false imprisonment (count 7).
Those offences were charged on an Information numbered 65 of 2014 (the Information). 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 FORREST (No 2)

Details

AGLC: R v Forrest (No 2) [2016] SASCFC 91
Case: [2016] SASCFC 91
Decision Date: 24 August 2016

CaseChat Overview and Summary

The Court of Criminal Appeal of South Australia, constituted by Kourakis CJ, Kelly and Lovell JJ, considered an appeal against sentence in the matter of *R v Forrest (No 2)*. The appeal concerned the appropriate sentence to be imposed following a conviction.

The central legal issue before the Court was the extent of its powers to review and potentially alter a sentence imposed by a lower court. Specifically, the Court had to determine whether the original sentence was manifestly excessive or otherwise vitiated by error, thereby justifying appellate intervention.

The Court's reasoning focused on the principles governing appellate review of sentencing. It affirmed that an appellate court should only interfere with a sentence if it is demonstrably wrong, meaning it is outside the bounds of a reasonable exercise of the sentencing judge's discretion. This involves considering the gravity of the offence, the circumstances of the offender, and the sentencing objectives, including deterrence, rehabilitation, and punishment. The Court applied these principles to the facts of the case to assess whether the original sentence met the threshold for appellate intervention.

Orders