R v McPherson - [2011] SASCFC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MCPHERSON
[2011] SASCFC 105
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Stanley)
29 September 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - ADJOURNMENT - GENERALLY
Appeal against sentence - appellant found guilty by a jury of aggravated serious criminal trespass in a place of residence and aggravated assault - appellant sentenced to a term of four years' imprisonment with a non-parole period of 18 months - appellant also sentenced to one month imprisonment relating to a breach of bond to be served concurrently with the four-year sentence - application for an adjournment for the appellant to obtain psychological reports in respect of the appellant and his child refused by sentencing Judge - whether the appellant was denied procedural fairness - whether all material relevant to sentencing was before the Court.
Held: Appeal allowed - sentencing discretion miscarried - matter remitted to trial Judge to resentence appellant - appellant denied the opportunity of providing relevant personal information to the Court - the matters referred to in the psychologist's reports establish the need for resentencing the appellant.
Criminal Law Consolidation Act 1935 (SA) s 353(4), s 353(5), referred to.

R v MCPHERSON
[2011] SASCFC 105
Court of Criminal Appeal: Gray, Sulan and Stanley JJ
THE COURT:

This is an appeal against sentence.
On 17 March 2011, the defendant and appellant, Clay Justin McPherson, was found guilty by a jury verdict following a trial in the District Court of the offences of aggravated serious criminal trespass in a place of residence and aggravated assault. The circumstance of aggravation in each case was that he was in company with others. The appellant was sentenced together with two co‑accused.
The trial Judge sentenced the appellant to a term of four years’ imprisonment. A non-parole period of 18 months was fixed. The appellant acknowledged a breach of bond imposed for an earlier offence of resisting police. For this offence, he was sentenced to one month imprisonment, to be served concurrently with the four-year sentence.
The appellant complained on appeal that he had been denied procedural fairness and that as a consequence material relevant to sentencing was not before the Court. It was said that the sentencing process proceeded without regard to relevant material and that as a consequence the sentencing discretion miscarried. It was further complained that the sentence was manifestly excessive.
On the hearing of the appeal, the Director conceded that there had been a denial of procedural fairness and that in the circumstances the sentence imposed should be set aside and the appellant resentenced. On 19 September 2011, the Court allowed the appeal and remitted the proceedings to the District Court Judge to allow the appellant to be resentenced. The Court considered that the Director’s concession was…

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 McPherson

Details

AGLC: R v McPherson [2011] SASCFC 105
Case: [2011] SASCFC 105
Decision Date: 29 September 2011

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, who had been found guilty by a jury of aggravated serious criminal trespass in a place of residence and aggravated assault. The appellant was sentenced to four years' imprisonment with a non-parole period of 18 months, and a concurrent one-month sentence for a breach of bond. The appeal was heard by Justices Gray, Sulan, and Stanley.

The central legal issues before the appellate court were whether the sentencing judge had erred by refusing an application for an adjournment to obtain psychological reports concerning the appellant and his child, and consequently, whether the appellant had been denied procedural fairness. The court was also required to determine if all material relevant to sentencing had been before the court.

The appellate court found that the sentencing discretion had miscarried. It held that the refusal of the adjournment denied the appellant the opportunity to present relevant personal information to the court, thereby impacting procedural fairness. The court concluded that the matters contained within the psychological reports indicated a need for the appellant to be resentenced.

The appeal was allowed, and the matter was remitted to the trial judge for resentencing.

Orders