R v Moore-McQuillan - [2018] SASCFC 121

Supreme Court of South Australia
(Court of Criminal Appeal)
R v MOORE-MCQUILLAN
[2018] SASCFC 121
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Auxiliary Justice Chivell)
22 November 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
Application for permission to appeal a sentence imposed by a District Court Judge. The applicant was sentenced to three months imprisonment for the offences of aggravated assault and breach of bail. That offending breached a suspended sentence of six months imprisonment for an offence of aggravated threatening harm. The learned sentencing Judge ordered that the sentence of six months be served cumulatively upon the sentence of three months, making a head sentence of nine months imprisonment. Her Honour declined to make an order that the sentence be served on home detention.
The applicant appeals the sentence imposed on the grounds that the learned sentencing Judge erred by refusing to permit either of the sentences to be served on home detention (ground 1), by failing to take into account the length of time between the date of the offending and the date of sentence (ground 2), by failing to reduce the sentence on account of the “guilty plea” (ground 3) and by not ordering that the sentences be served concurrently (ground 4).
Held per Kelly J (Peek J and Chivell AJ agreeing) refusing permission to appeal on grounds 2, 3 and 4 and granting permission to appeal on ground 1 but dismissing the appeal:
1. In considering the issue of revocation of the suspended sentence, the learned sentencing Judge correctly applied the Sentencing Act 2017 and correctly determined that home detention was not appropriate in light of the applicant’s history and the circumstances of the offending.
2. The delay between the date of the offending and the date of sentence did not amount to special circumstances within the meaning of s 114(5)(a) Sentencing Act 2017.
3. There was no “guilty plea” to justify a discount.
4. There was no basis for the learned sentencing Judge to have imposed concurrent sentences nor to have discounted the sentences.
Sentencing Act 2017 Sections 5, 71 and 114; Criminal Law (Sentencing) Act 1988 Sections 33BB and 38, referred to.
R v Oake [2017] SASCFC 82; R v Dell (2016) 126 SASR 571; R v Filipponi [2016] SASCFC 148, considered.

R v MOORE-MCQUILLAN
[2018] SASCFC 121
Court of Criminal Appeal: Kelly and Peek JJ and Chivell AJ
KELLY J:

The applicant applies for permission to appeal a sentence imposed by a District Court Judge on 6 June 2018.
On that date the Judge sentenced the applicant for the offences of aggravated assault and breach of bail, both committed on 10 December 2015. The offending constituted a breach of a bond entered into in the District Court…

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 Moore-McQuillan

Details

AGLC: R v Moore-McQuillan [2018] SASCFC 121
Case: [2018] SASCFC 121
Decision Date: 22 November 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant against a sentence imposed by the District Court. The applicant had acknowledged breaches of a District Court bond, which had been entered into after his convictions for offences committed in 2015. The appeal was heard by Kelly and Peek JJ, and Chivell AJ.

The primary legal issues before the court were whether the sentencing judge had erred in not providing a discount for an early plea, and more broadly, whether the sentencing approach was appropriate. The applicant also raised other grounds of appeal concerning the sentence. A significant point of contention was the applicant's subsequent release on home detention shortly after the District Court sentencing.

The court determined that the applicant was not entitled to a discount for an early plea, as his acknowledgment of breaching the bond did not constitute an early plea in the relevant sense. While permission to appeal was granted on one ground concerning an important question of law, the appeal was ultimately dismissed on all grounds. The court noted that the applicant's release on home detention, pursuant to s.37A of the *Correctional Services Act 1982*, less than six weeks after sentencing, had directly undermined the sentencing discretion exercised by the District Court judge. This action was considered to have seriously undermined the purpose of the sentence, particularly given the applicant's history of violent offences.

Consequently, the court concluded that the appeal lacked utility and had become a "pointless academic exercise." The appeal was dismissed, with the judges agreeing with the reasons provided by Kelly J.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Finally, the applicant has complained that the Judge did not give him any discount for an early plea. That is because there was no early plea. The applicant acknowledged the breaches of the District Court bond entered into on 9 December 2018, after he was convicted for the offending on 8 July 2015 and 10 December 2015. He is not entitled to any discount for acknowledging that his offending breached a bond.Conclusion There has been no error demonstrated in the Judge’s approach to sentencing the applicant. In these circumstances I would refuse the applicant permission to appeal in respect of grounds 2, 3 and 4. As the determination of ground 1 involved an important question of law, I would grant the applicant permission in respect of ground 1. However, I would dismiss the appeal on all grounds. Finally, I make the comment that we were informed by the applicant during the hearing of the appeal that he was released on home detention on 20 July 2018. Subsequently, the Department for Correctional Services confirmed that the applicant was released on Home Detention on that date pursuant to s.37A of the Correctional Services Act 1982. In the particular circumstances of this case I consider that the decision of the Chief Executive to release the applicant on home detention only six weeks after he was sentenced in the District Court has directly undermined the exercising of the sentencing discretion by the learned sentencing Judge. The applicant, as I have set out in detail, has a very poor history for previous offences of violence. The Judge was right to reject the submission that the sentence ought to be suspended or served on home detention. Having done so, I consider that the action of the Chief Executive less than six weeks later seriously undermines the purpose of the sentence. As a consequence, it is my view that the current appeal lacks utility and has been a somewhat pointless academic exercise.PEEK J: I would dismiss the appeal. I agree with the reasons of Kelly J.CHIVELL AJ: I agree that permission to appeal should be refused in relation to grounds 2, 3 and 4, permission to appeal should be granted in relation to ground 1 and that the appeal should be dismissed for the reasons given by Kelly J.

Ratio Decidendi

Legal Principle Established

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