SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NEILSON
[2016] SASCFC 90
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Bampton and The Honourable Justice Doyle)
19 August 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
The appellant pleaded guilty to one count of causing harm with intent to cause harm and one count of aggravated assault – immediate custodial sentence of two years’ imprisonment with a non-parole period of 10 months imposed – whether Judge erred in not suspending the sentence.
HELD per Bampton J (Vanstone and Doyle JJ agreeing):
1. The decision not to suspend the sentence was within the Judge’s discretion.
2. Appeal dismissed.
3. Appellant to be taken back into custody to serve the sentence.
Criminal Law Consolidation Act 1935 (SA) s 24(1), s 20(3); Criminal Law (Sentencing) Act 1988 (SA) s 38(1), referred to.
R v Wilton (1981) 28 SASR 362; Lowndes v The Queen (1999) 195 CLR 665; House v The King (1936) 55 CLR 499; Police v Chilton (2014) 120 SASR 32; R v Lutze (2014) 121 SASR 144; R v Wheeler [2015] SASCFC 83; R v Jongewaard [2009] SASC 346, considered.
R v NEILSON
[2016] SASCFC 90Court of Criminal Appeal: Vanstone, Bampton & Doyle JJ
VANSTONE J: I would dismiss the appeal. I agree with the reasons of Bampton J.
BAMPTON J: The appellant was charged on an Information with causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) (count 1) and aggravated assault contrary to s 20(3) of the CLCA (count 2).
The appellant pleaded guilty at arraignment in the District Court on 11 January 2016 to count 2 and to count 1 at a special directions hearing on 11 May 2016.
Count 2 was aggravated because the assault was committed against the appellant’s former wife (J). Count 1 was committed against J’s partner, M. The maximum penalty for causing harm with intent to cause harm is 10 years’ imprisonment. Aggravated assault carries a maximum penalty of three years’ imprisonment.
On 17 June 2016, the appellant was sentenced for each offence resulting in a total sentence of two years’ imprisonment with a non‑parole period of 10 months to be served immediately. The appellant was released on bail following the grant of permission to appeal on 25 July 2016.
The appellant appeals against the sentence on the sole ground that the sentencing Judge erred in not suspending the sentence.
For the reasons that follow, I would dismiss the appeal.
Background
The appellant was married to J for over 32 years, separating towards the end of 2012 and divorcing in 2013. At the time of separation, J kept custody of the family dog, Jo Jo. At the time…
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- AGLC
- R v Neilson [2016] SASCFC 90
- Case
- [2016] SASCFC 90
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the sentencing judge erred in not suspending the appellant's sentence. The appellant contended that he was suffering from overwhelming distress at the time of the offending, which prevented him from exercising reason, and that this emotional stress should have been considered as a mitigating factor. Furthermore, the appellant argued that his guilty pleas, cooperation with the police, and offer to pay compensation demonstrated contrition and should have been given greater weight by the sentencing judge.
The Full Court affirmed that an appellate court will only interfere with a sentencing judge's discretion if it has been wrongly exercised. This includes situations where the judge has acted upon a wrong principle, taken into account irrelevant considerations, failed to consider material factors, acted on a mistaken view of the facts, or imposed a sentence that is manifestly inadequate or excessive. The court found that the sentencing judge had properly considered the nature of the offending, including the fact that it was an act of domestic violence against a former spouse, and the psychological impact on the victim. The appellant's complaints regarding the characterisation of the offending and the alleged failure to adequately consider his contrition were dismissed.
The appeal was dismissed, and the sentence imposed by the sentencing judge was upheld.
Orders
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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