R v Lutze No. Sccrm-99-78, Sccrm-99-79 Judgment No. S286

[1999] SASC 286

R v LUTZE
[1999] SASC 286

Court of Criminal Appeal:  Doyle CJ, Wicks & Martin JJ

1. DOYLE CJ:       The applicant has appealed against conviction and against sentence.  Certain of the grounds upon which the applicant has appealed require leave to appeal. 

2. In relation to the appeal against conviction, leave was refused on ground 2.  In relation to the appeal against sentence, leave was refused on ground 3. 

3. By application dated 10 June 1999, the applicant applied to have determined by the Full Court her application for leave to appeal on each of these grounds.   The application was considered by the Full Court in private pursuant to Rule 15(7) of the Criminal Appeal Rules. 

4. The application was considered by a court comprising Wicks J, Martin J and me. 

5. In relation to the appeal against conviction, ground 2 complains of a failure of the trial judge to direct the jury in relation to the improbability of the accused acting in the manner suggested by the prosecution.  We are unanimously of the opinion that this ground is misconceived and has no reasonable prospect of success.  The judge gave a direction on the matter which was adequate. 

6. In relation to the appeal against sentence, the ground upon which leave to appeal was refused relates to the judge's refusal to suspend the sentence imposed upon the appellant, despite the fact that she is pregnant and has a responsibility to care for young children.  The judge recognised that if any of the other grounds of appeal succeeded, this matter would be considered as part of the reconsideration of the sentence. 

7. Nevertheless, we would grant leave to appeal against sentence on ground 3 on the ground that it is merely another aspect of the complaint that the sentence is excessive. 

8. Accordingly, in relation to the appeal against conviction, the order of the court is that leave to appeal on ground 2 be refused.  In relation to the appeal against sentence, the order of the court is that leave to appeal on ground 3 be granted.