(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Blue)
28 November 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - EVIDENCE - BURDEN AND STANDARD OF PROOF
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS
The appellant was sentenced in the District Court on multiple offences arising out of serious commercial drug dealing and firearm offending committed in late 2010 and early 2011. The appellant pleaded guilty to those offences. On the same day the appellant was also sentenced for offences committed in 2009 for which he had been placed on a bond, subsequently breached by the commission of the 2010 offences.
The DPP had previously entered a nolle prosequi on one of the counts of possessing methylamphetamine on the information charging the 2011 offences. However, when the Judge sentenced the appellant he overlooked the entry of the nolle prosequi and purported to sentence the appellant on that count as well.
On appeal the DPP accepted that the error made by the Judge necessarily affected the sentence imposed as a whole. That concession called for an exercise by this Court of the powers conferred by s 353(4) of the Criminal Law Consolidation Act 1935 (SA).
Held (allowing the appeal against sentence):
(1) The Court has power under section 354(4) of the Criminal Law Consolidation Act 1935 (SA) to remit the matter for resentencing by the District Court upon being satisfied that the sentence imposed is vitiated by error (Kourakis CJ at [6]-[19], Gray and Blue JJ at [49]-[58]).
(2) Observations on the onus and standard of proof in relation to circumstances said to be aggravating or mitigatory (Kourakis CJ at [21]-[30], Gray and Blue JJ at [59]-[69]).
(3) In the circumstances of this case, the discretion conferred by s 353(4) of the Criminal Law Consolidation Act 1935 (SA) should be exercised to remit the matter to the District Court for resentencing (Kourakis CJ at [37]-[43], Gray and Blue JJ at [70]).
(4) Appeal against sentence allowed; the sentence imposed in the District Court set aside; and the matter remitted to the District Court for resentencing (Kourakis CJ at [1], Gray and Blue JJ at [70]).
[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 Kreutzer [2013] SASCFC 130
Case
[2013] SASCFC 130
Decision Date
CaseChat Overview and Summary
The appeal concerned the sentence imposed on the respondent, R Kreutzer, in the District Court of South Australia. The appeal was brought by the Crown.
The central legal issues before the Court were the powers of an appellate court to remit a matter for resentencing when the original sentence is found to be vitiated by error, and the onus and standard of proof in relation to circumstances that are said to be either aggravating or mitigatory during sentencing. The Court was required to consider the application of High Court decisions in *Olbrich* and *Weininger* to sentencing in South Australia.
The Court held that it possessed the power under section 354(4) of the *Criminal Law Consolidation Act 1935* (SA) to remit a matter for resentencing by the District Court if satisfied that the original sentence was vitiated by error. The Court also made observations regarding the onus and standard of proof for aggravating and mitigatory circumstances in sentencing. Applying these principles to the specific circumstances of the case, the Court concluded that the discretion conferred by section 353(4) of the *Criminal Law Consolidation Act 1935* (SA) should be exercised to remit the matter for resentencing.
Consequently, the appeal against sentence was allowed, the sentence imposed in the District Court was set aside, and the matter was remitted to the District Court for resentencing.
Orders
Orders of the court
Held (allowing the appeal against sentence):
(1) The Court has power under section 354(4) of the Criminal Law Consolidation Act 1935 (SA) to remit the matter for resentencing by the District Court upon being satisfied that the sentence imposed is vitiated by error (Kourakis CJ at [6]-[19], Gray and Blue JJ at [49]-[58]).
(2) Observations on the onus and standard of proof in relation to circumstances said to be aggravating or mitigatory (Kourakis CJ at [21]-[30], Gray and Blue JJ at [59]-[69]).
(3) In the circumstances of this case, the discretion conferred by s 353(4) of the Criminal Law Consolidation Act 1935 (SA) should be exercised to remit the matter to the District Court for resentencing (Kourakis CJ at [37]-[43], Gray and Blue JJ at [70]).
(4) Appeal against sentence allowed; the sentence imposed in the District Court set aside; and the matter remitted to the District Court for resentencing (Kourakis CJ at [1], Gray and Blue JJ at [70]).
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
The High Court decisions in Olbrich[59] and Weininger[60] have direct application to sentencing in South Australia and, insofar as earlier decisions of this Court express a contrary view, they no longer represent the law. [59] R v Olbrich (1999) 199 CLR 270.[60] Weininger v The Queen (2003) 212 CLR 629.Conclusion The Court allowed the appeal and set aside the sentence imposed by the sentencing Judge. The Court remitted the matter to the District Court for resentencing.