R v Lynch No. Sccrm-02-65

[2002] SASC 296

R  v  LYNCH
[2002] SASC 296

Court of Criminal Appeal:  Doyle CJ, Wicks and Besanko JJ

1. DOYLE CJ, WICKS and BESANKO JJ:        In this matter, we have heard submissions and noted that the Director of Public Prosecutions acknowledges that, due to a mistake in the material before the Judge, the sentencing Judge sentenced on the basis that there was a very relevant previous conviction, namely, possessing cannabis for sale.  In fact, the previous conviction was for simple possession. It is apparent, as is acknowledged by Ms Davison for the Director, that the sentencing proceeded on an erroneous basis, and it would be appropriate for this Court to set aside the sentence and to reconsider the appropriate sentence.

2. The Court notes that the Director’s submission is that in that event the sentence originally passed would again be an appropriate sentence.

3. There are two obstacles to the Court proceeding to do that now.  One is that in circumstances not yet clarified the appellant has not been brought to Court, although he has indicated he wishes to be present for the appeal.

4. The second is that the appellant wishes to rely upon a report from Dr Raeside, a psychiatrist, and at this stage the Director does not consent to that report being put before the Court, either as fresh evidence on appeal or as material for the Court to consider when resentencing if the appeal was allowed.

5. The reason for that opposition is that the factual basis upon which Dr Raeside has expressed his opinions is contested.

6. In all of the circumstances, as it is acknowledged that there was an error affecting the sentence which requires reconsideration, it seems to us that the better course is to allow the appeal and to remit the matter to the District Court for resentencing, to avoid the difficulties of the Court of Criminal Appeal being involved in a process that would require the giving of evidence by Mr Lynch as to some of the matters relevant to sentence and the giving of evidence by Dr Raeside, a process that is more conveniently dealt with at the District Court level.

7. Accordingly the Court orders:

   1.That the appeal be allowed;

   2.That the sentence imposed by the District Court be set aside;

   3.That the matter be remitted to the District Court for resentencing;

   4.The appellant be remanded in custody to appear before the District Court on a date to be fixed by the District Court for the hearing of further submissions.