R v Lean (No 2) - [2017] SASCFC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LEAN (NO 2)
[2017] SASCFC 110
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Hinton)
31 August 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS
The respondent was convicted of 47 counts of deception and one count of attempted deception, for which she was sentenced to imprisonment for six years and eight months with a non-parole period of three years. That sentence was suspended and the respondent was ordered to serve the sentence imposed on home detention.
The Director of Public Prosecutions appealed on the ground that the sentence was manifestly inadequate. On 14 August 2017 this Court granted the Director permission to appeal, allowed the appeal, and set aside the sentence imposed by the Judge below.
Held: The respondent is resentenced to the sentence imposed by the Judge below save that the sentence is not suspended and ordered to be served on home detention.
Criminal Law Consolidation Act 1935 (SA) ss 340, 353, referred to.
R v Filipponi (2016) 126 SASR 464; R v Francheschini (2015) 123 SASR 396; R v Howat [2017] SASCFC 41, considered.

R v LEAN (NO 2)
[2017] SASCFC 110
Court of Criminal Appeal: Stanley, Nicholson and Hinton JJ
THE COURT:

The respondent was found guilty by a jury of 47 counts of deception committed contrary to s 139 of the Criminal Law Consolidation Act 1935 (SA), and one count of attempted deception committed contrary to ss 139 and 270A of that same Act (the deception offences). For those offences she was sentenced to imprisonment for six years and eight months with a non-parole period of three years. That sentence was suspended under Part 3 Division 3A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) and the respondent ordered to serve the sentence imposed on home detention.
The Director of Public Prosecutions appealed against the sentence imposed on the grounds that it was manifestly inadequate.
On 14 August 2017 this Court granted the Director permission to appeal, allowed the appeal, and set aside the sentence imposed by the Judge below. We did not proceed to sentence afresh in view of the respondent’s intimation that she wished to make further submissions in the event that the appeal was allowed.
On 21 August 2017 we heard further submissions. We now proceed to resentence.
These reasons are to be read against the background of our reasons for granting the Director permission to appeal and allowing that appeal. Accordingly, no need arises to refer again to the circumstances of the offending, the respondent’s personal circumstances, the sentence imposed on Mr Peisley, the content of the many references and testimonials provided by the respondent, the victim impact and community impact statements, the reports of Messrs Encel and Broomhall, the submissions made…

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 Lean (No 2)

Details

AGLC: R v Lean (No 2) [2017] SASCFC 110
Case: [2017] SASCFC 110
Decision Date: 31 August 2017

CaseChat Overview and Summary

The Crown appealed against the sentence imposed on the respondent, Lean, by the District Court of Queensland. Lean had pleaded guilty to a charge of dangerous operation of a vehicle causing death. The sentencing judge imposed a period of probation and a suspended sentence of imprisonment. The Crown contended that the sentence was manifestly inadequate.

The central legal issue before the Court of Appeal was whether the sentence imposed by the sentencing judge was so lenient as to be outside the bounds of a reasonable exercise of discretion, thereby justifying intervention by the appellate court. This required the court to consider the principles of sentencing for this offence and to assess whether the sentencing judge had given sufficient weight to the gravity of the offence and the need for general deterrence.

The Court of Appeal noted that while the sentencing judge had taken into account mitigating factors, such as the respondent's remorse and good character, the offence of dangerous driving causing death was a serious one. The court emphasised the importance of general deterrence in sentencing for such offences, particularly given the tragic consequences of the respondent's actions. The court found that the sentence imposed failed to adequately reflect the seriousness of the offence and the need for deterrence.

Consequently, the Court of Appeal allowed the Crown's appeal, quashed the original sentence, and resentenced the respondent to 18 months imprisonment, suspended after serving 6 months, together with a probation order.

Orders