R v Kokotis - [2021] SASCA 80

Supreme Court of South Australia
(Court of Appeal: Criminal)
R v KOKOTIS
[2021] SASCA 80
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Bleby and the Honourable Justice Blue)
17 August 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
Application by the South Australian Director of Public Prosecutions for permission to appeal against sentence.
The respondent pleaded guilty to an aggravated offence of threatening harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA). The circumstances of aggravation alleged were that the respondent committed the offence while in the company of another and that the two men used or threatened to use offensive weapons, namely baseball bats, to commit or when committing the offence. The count in respect of which the respondent’s plea was accepted in satisfaction of the charge did not particularise the use or threatened use of a firearm.
Nevertheless, prior to the respondent’s guilty plea, a resolution was reached between the respondent and the prosecution on the premise that the respondent had used multiple weapons and there was to be a dispute of fact over whether or not the second weapon was a firearm.
The judge proposed to resolve the dispute by viewing a video recording of the incident taken by a passer-by on his phone. The parties acquiesced in this course. The judge concluded, having viewed the recording, that she could not be satisfied beyond reasonable doubt that the item in the respondent’s hand was a firearm.
The judge sentenced the respondent to a period of imprisonment of two years, eight months and 12 days. This incorporated a discount of 10 percent from a starting point of three years, on account of the respondent’s guilty plea. She set a non-parole period of 10 months. She ordered that the head sentence be served on home detention, on specified conditions.
The primary issue on appeal was whether, in determining whether she was satisfied that the object was a firearm for the purposes of the definition of ‘offensive weapon’ within the meaning of s 5 of the Criminal Law Consolidation Act 1935 (SA), the judge asked the wrong question.
Held (by the Court), granting permission to appeal and allowing the appeal:
1. The judge failed to apply the definition of ‘imitation firearm’ in s 5 of the Criminal Law Consolidation Act 1935 (SA) to her consideration of the evidence.
2. Given the terms of the agreed resolution, the acquiescence by the defence in the course taken and the significance of the error in point of principle in the judge’s approach to the definitions, this is one of those exceptional cases where permission to appeal should be granted.
3. The sentence is set aside.
4. The matter is remitted for resentencing before a different judge.
Criminal Law Consolidation Act 1935 (SA) ss 5, 5AA(1), 5AA(3),…

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 Kokotis

Details

AGLC: R v Kokotis [2021] SASCA 80
Case: [2021] SASCA 80
Decision Date: 17 August 2021

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, R v Kokotis, in the District Court of South Australia. The dispute concerned the proper application of the definition of an "imitation firearm" under the *Criminal Law Consolidation Act 1935* (SA) in the context of an assault charge.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had correctly applied the statutory definition of an imitation firearm when considering the evidence presented. The Court was required to determine if an error in this regard was significant enough to warrant intervention on appeal.

The Court found that the sentencing judge had failed to properly apply the definition of "imitation firearm" as contained in section 5 of the *Criminal Law Consolidation Act 1935* (SA) to the evidence. This error was considered significant in point of principle. Given the agreed resolution between the parties and the defence's acquiescence in the course taken, the Court deemed this an exceptional case justifying the grant of permission to appeal.

Consequently, the Court granted permission to appeal, allowed the appeal, set aside the original sentence, and remitted the matter to the District Court for resentencing before a different judge.

Orders

Orders of the court

Held (by the Court), granting permission to appeal and allowing the appeal:

1. The judge failed to apply the definition of ‘imitation firearm’ in s 5 of the Criminal Law Consolidation Act 1935 (SA) to her consideration of the evidence.

2. Given the terms of the agreed resolution, the acquiescence by the defence in the course taken and the significance of the error in point of principle in the judge’s approach to the definitions, this is one of those exceptional cases where permission to appeal should be granted.

3. The sentence is set aside.

4. The matter is remitted for resentencing before a different judge.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In view of the attitude expressed by both parties on appeal to the question, it is appropriate that we remit the matter to the District Court rather than proceed to resentence the respondent ourselves.Conclusion We grant permission to appeal. We allow the appeal and set aside the sentence. We remit the matter for resentencing before a different judge.

Ratio Decidendi

Legal Principle Established

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