R v Jorquera - [2013] SASCFC 145

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JORQUERA
[2013] SASCFC 145
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)
19 December 2013
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 - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - FAILURE TO EXERCISE DISCRETION
Appeal against sentence.
The appellant pleaded guilty to two counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA).
Between 30 September 2010 and 20 February 2012 the appellant dishonestly dealt with 60 V8 motor vehicle engines and 78 V8 motor vehicle transmissions, the property of General Motors Holden.
The sentencing judge fixed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. The appellant was sentenced to a term of six years imprisonment with a non-parole period of three years.
The appellant appeals against sentence, on the grounds that (1) both the head sentence and the non-parole period are manifestly excessive; and (2) the learned sentencing judge erred in failing to suspend the term of imprisonment.
Held per Stanley J (Kourakis CJ and Vanstone J agreeing) (dismissing the appeal):
1. Neither the head sentence nor the non-parole period is manifestly excessive (at [16] - [22]).
2. The sentencing judge had regard to all the relevant sentencing considerations in the particular circumstances of the appellant’s case. The judge made no error in declining to suspend the sentence (at [23] - [29]).
Criminal Law Consolidation Act 1935 (SA) s 134; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38, referred to.
Markarian v The Queen (2005) 228 CLR 357; Police v Curtis and Marshall (2004) 145 A Crim R 587; Chisholm v The Queen (1985) 122 LSJS 230; House v The King (1936) 55 CLR 499, discussed.
R v Davies (1996) 88 A Crim R 226; R v Wacyk (1996) 66 SASR 530; R v O'Toole [2013] SASCFC 18; R v Kruger (1977) 17 SASR 214; Wessling v Police (2004) 88 SASR 57; R v Reichstein (2007) 251 LSJS 279; Bugmy v The Queen (2013) 87 ALJR 1022, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Good reason"

R v JORQUERA
[2013] SASCFC 145
Court of Criminal Appeal: Kourakis CJ, Vanstone and Stanley JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Stanley J.
VANSTONE J: I agree that this appeal should be dismissed for the reasons written by Stanley J.
STANLEY J:
Introduction
This is an appeal against sentence.
The appellant pleaded guilty to two counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). The maximum penalty for this offence is a term of imprisonment of…

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 Jorquera

Details

AGLC: R v Jorquera [2013] SASCFC 145
Case: [2013] SASCFC 145
Decision Date: 19 December 2013

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the respondent, Jorquera, by the District Court of South Australia. The specific grounds for appeal were not detailed in the provided text, but the case involved an assessment of whether the sentencing judge had erred in the exercise of their discretion.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had failed to exercise their discretion or had exercised it improperly, thereby providing grounds for appellate interference with the sentence.

The Full Court, comprising Kourakis CJ, Vanstone and Stanley JJ, ultimately determined that there were no grounds to interfere with the sentence imposed. The reasoning for this conclusion, as indicated by the brief judgment, was that the appeal against sentence should be dismissed. The appeal was therefore dismissed.

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

I would dismiss this ground of appeal.Conclusion I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.