(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Doyle)
19 April 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
Appeal against sentence.
The appellant was convicted by a Judge of the District Court of one count of burglary and two counts of rape.
The appellant was sentenced to imprisonment for 12 years and seven months, reduced from a starting point of 14 years, with a non-parole period of eight years and six months.
Held per Kourakis CJ (Blue and Doyle JJ agreeing), allowing the appeal:
1. The sentence imposed was not manifestly excessive.
2. The Judge erred in failing to have regard to the opinions of a forensic psychologist, which error requires the appellant to be resentenced.
3. The appellant’s sentence is reduced to 10 years and 10 months with a non-parole period of six years and six months.
Court of Criminal Appeal: Kourakis CJ, Blue and Doyle JJ
KOURAKIS CJ: This is an application for permission to appeal against a sentence imposed in the District Court on a charge of burglary contrary to s 168 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and two charges of rape contrary to s 48 of the CLCA. The Judge sentenced the applicant to imprisonment for 12 years and seven months, reduced by 10 per cent from a starting point of 14 years on account of the applicant’s guilty plea, and fixed a non-parole period of eight years and six months. The applicant seeks to appeal on the following grounds:
1. The sentence and non-parole period are manifestly excessive.
2. The learned sentencing judge erred by giving too much weight to:-
2.1 The failure of the applicant to plead guilty at his first arraignment.
2.2 The absence of an explanation from the applicant as to the reason the offences occurred.
3.The learned sentencing judge erred by giving too little weight to:-
3.1 The applicant’s efforts to rehabilitate himself following his release from prison in…
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.
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Details
AGLC
R v Knight [2016] SASCFC 40
Case
[2016] SASCFC 40
Decision Date
CaseChat Overview and Summary
The applicant, R v Knight, was appealing a sentence imposed by the District Court. The appeal concerned the applicant's conviction for sexual offences.
The primary legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence imposed by the District Court was manifestly excessive, and if so, what sentence should be substituted. This involved considering the appropriate weight to be given to a late guilty plea and the applicant's history of reoffending despite previous parole.
The Chief Justice, with whom Blue and Doyle JJ agreed, allowed the appeal. His Honour reasoned that a reduction of 10 per cent was appropriate for the late guilty plea, leading to a head sentence of 10 years and 10 months. The court considered the applicant's past parole breaches and underlying antisocial personality disorder, concluding that a non-parole period of 60 per cent of the head sentence, equating to six years and six months, was appropriate to allow for rehabilitation while maintaining caution. The court set aside the original sentence and imposed the substituted sentence commencing on 28 July 2015.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
I would allow a reduction of 10 per cent for the late guilty plea and impose a head sentence of 10 years and 10 months. Because the applicant has had the benefit of parole before but has still reoffended, it is not appropriate to fix a relatively low non-parole period. His underlying antisocial personality disorder is a reason for continuing caution but its amelioration allows some scope for rehabilitation. A non-parole period of 60 per cent of the head sentence is appropriate. I would therefore fix a non-parole period of six years and six months.Conclusion I would grant permission to appeal and allow the appeal. I would:·set aside the sentence imposed in the District Court;·impose instead a sentence of 10 years and 10 months commencing on 28 July 2015; and ·fix a non-parole period of six years and six months. BLUE J: I agree. DOYLE J: I would allow the appeal. I agree with the reasons of the Chief Justice, and with the sentence he has proposed.