R v Hughey - [2007] SASC 452

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUGHEY
[2007] SASC 452
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Sulan and The Honourable Justice Vanstone)
20 December 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
Prosecution appeal against sentence – respondent detained in custody after charged with offences the subject of these proceedings – respondent also in custody on estreatment of breached bonds – respondent subsequently released but later arrested and remained in custody for unrelated offences – whether judge erred in reducing sentence for time spent in custody for breached bonds – whether judge erred in backdating sentence to date when respondent was arrested and taken into custody for unrelated offences – permission to appeal granted – appeal allowed – sentence set aside and respondent re-sentenced – commencement date varied.
Criminal Law (Sentencing) Act 1988 s 30(2), referred to.
Everett v The Queen (1994) 181 CLR 295; R v Arts and Briggs [1998] 2 VR 261; R v Osenkowski (1982) 30 SASR 212; R v Tait (1979) 46 FLR 386, applied.
R v Zoneff (No 3) (2000) 113 A Crim R 423, distinguished.
Bonney v SA Police (1996) 185 LSJS 185; Tong v Police (1998) 198 LSJS 398, considered.

R v HUGHEY
[2007] SASC 452
Court of Criminal Appeal: Debelle, Sulan and Vanstone JJ

DEBELLE and VANSTONE JJ: The Director of Public Prosecutions applies for permission to appeal against a sentence imposed on the respondent in the District Court. The respondent pleaded guilty to two counts of aggravated serious criminal trespass in a non-residential building, one count of serious criminal trespass in a non-residential building and one count of possessing implements of house breaking, the offences occurring on two different occasions and at three locations. The sentencing judge imposed a single sentence of 3 years, 4 months and 16 days and fixed a non-parole period of 2 years and 1 month.
The application is made on two grounds. The first is that the judge erred in reducing the sentence for time spent in custody prior to release on bail. The second is that the judge erred in backdating the sentence to a date when the respondent was arrested for unrelated offences. In both respects, it is contended that the judge acted in a way not permitted by s 30(2) of the Criminal Law (Sentencing) Act 1988.
The respondent was arrested for three of the charges for which he was sentenced on 6 March 2006. He remained in custody until release on home detention bail on 15 August 2006. The period in custody was five months and ten days. However, for three months of that period the respondent was serving two concurrent sentences of imprisonment. In 2004 suspended sentences had been imposed in respect of offences of driving under disqualification. The respondent subsequently…

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 Hughey

Details

AGLC: R v Hughey [2007] SASC 452
Case: [2007] SASC 452
Decision Date: 20 December 2007

CaseChat Overview and Summary

The case of R v Hughey involved the Attorney-General for the Commonwealth appealing against the sentence imposed on Hughey, who had been convicted of certain offences. Hughey was initially detained in custody following the charges and was also subject to an estreatment for breached bonds. Although he was later released, he was subsequently arrested and remained in custody for unrelated offences. The central issue before the court was whether the trial judge had erred in reducing Hughey's sentence for the time he spent in custody for the breached bonds and in backdating the sentence to the date when he was arrested for the unrelated offences. The court was required to determine if these actions constituted a legal error that warranted the appeal being allowed.

The court considered whether the judge had misapplied the law in reducing the sentence to account for the time Hughey spent in custody for the breached bonds. The court also examined if the judge had correctly backdated the sentence to the date when Hughey was arrested for the unrelated offences. The Attorney-General argued that these actions were erroneous and that the sentence should be reviewed. The court found that the judge had indeed erred in these respects, leading to an unfair reduction in the sentence. Consequently, the court granted the appeal and allowed the appeal against the sentence.

In light of the errors identified, the court set aside the original sentence and re-sentenced Hughey. The court also varied the commencement date of the new sentence to ensure it reflected the correct legal principles. This decision underscored the importance of correctly applying sentencing laws and the impact of judicial errors on the fairness and integrity of the sentencing process. The court's determination was that the original sentence was not in accordance with the law and required correction through the re-sentencing process.

Orders