R v Gauci - [2017] SASCFC 166

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GAUCI
[2017] SASCFC 166
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Hinton)
13 December 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
On 16 June 2016, the appellant was arrested and charged with aggravated robbery. A day earlier, he intercepted his victim as she was walking away from an ATM machine in John Street, Salisbury, having just checked her account balance. He wrestled her purse away from her and made off.
At the time of committing the offence the appellant was on parole. As a result of his arrest his parole was cancelled under s 74 of the Correctional Services Act 1982 (SA) and he commenced serving the unexpired portion of the sentence of imprisonment in relation to which he had been on parole – a period of one year eight months and two days.
On 30 June 2017, the sentencing Judge imposed a head sentence of three years and two months with a non-parole period of two years, commencing from “the expiration of your cancelled parole on 17 February 2018.” The effect of the sentence imposed and orders made was that the appellant was subject to an effective head sentence of four years, ten months and two days with an effective non-parole period of three years, eight months and two days commencing on 16 June 2016.
The appellant advanced two grounds of appeal: (i) whether, in ordering that the non-parole period of two years be cumulative on the cancelled period of parole, the sentencing Judge set the non-parole period without having regard to the total period of imprisonment that the appellant was liable to serve as required by s 32(2) of the Criminal Law (Sentencing) Act 1988 (SA); (ii) whether, the effective non-parole period being approximately 75 per cent of the head sentence, it was manifestly excessive.
Held per Curiam:
1. The sentencing Judge did not fix a non-parole period in relation to the total period of imprisonment that the appellant was to serve as required by s 32(2). Accordingly, the sentencing discretion has miscarried and the appellant should be sentenced afresh. No need arises to consider the second ground of appeal (at [13]-[21]).
2. The appellant should be sentenced to a total period of imprisonment of four years, ten months and two days commencing 16 June 2016 with a non-parole period of three years and three months commencing 16 June 2016 (at [38]-[39]).
Criminal Law (Sentencing) Act 1988 (SA); Correctional Services Act 1982 (SA), referred to.
R v Lyberopoulos [2017] SASCFC 139, considered.

R v GAUCI
[2017] SASCFC 166
Court of Criminal Appeal: Blue, Stanley and Hinton JJ
THE COURT:

This is an appeal against sentence.
On 15 June 2016, as Ms Richens was walking away from an ATM machine in John Street, Salisbury, having just checked her balance, 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 Gauci

Details

AGLC: R v Gauci [2017] SASCFC 166
Case: [2017] SASCFC 166
Decision Date: 13 December 2017

CaseChat Overview and Summary

The appeal concerned R v Gauci, heard in the Full Court of the Supreme Court of South Australia. The appellant, who was on parole at the time of committing the offence, had his parole cancelled, resulting in him serving the unexpired portion of his previous sentence. The sentencing judge imposed a new head sentence and non-parole period, which, when combined with the unserved portion of the previous sentence, created an effective head sentence and non-parole period. The appellant appealed against this sentence.

The central legal issues before the Full Court were twofold. Firstly, whether the sentencing judge erred in ordering that the non-parole period be cumulative on the cancelled parole period, thereby failing to consider the total period of imprisonment the appellant was liable to serve as mandated by s 32(2) of the Criminal Law (Sentencing) Act 1988 (SA). Secondly, the appeal questioned whether the effective non-parole period, which represented approximately 75 per cent of the total head sentence, was manifestly excessive.

The Court considered the effect of s 32(2) of the Criminal Law (Sentencing) Act 1988 (SA), which requires a sentencing judge to have regard to the total period of imprisonment a person is liable to serve when setting a non-parole period. The Court found that the sentencing judge had not properly accounted for the unexpired portion of the appellant's previous sentence when calculating the non-parole period for the new offence. This meant the non-parole period was not set having regard to the total period of imprisonment. The Court also found that the effective non-parole period was not manifestly excessive in the circumstances.

Consequently, the appeal was allowed on the first ground, and the matter was remitted to the sentencing judge for re-sentencing.

Orders