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R v NEYLAND

R v NEYLAND

Case [2023] SASCA 61 9 June 2023

Appeal

Charge

Sentencing

Statutory Construction

Criminal Law

Statutory Interpretation

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v NEYLAND
[2023] SASCA 61
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice David and the Honourable Auxiliary Justice Dalton)
9 June 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
This is an appeal by the Director of Public Prosecutions (SA) (‘the Director’) against sentence.

The respondent pleaded guilty to one count of unlawful strangulation in a domestic setting, contrary to s 20A(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) (Count 1), one count of aggravated assault causing harm, contrary to s 20(4)(c) of the CLCA (Count 2), and one count of aggravated assault causing harm, contrary to s 20(4)(b) of the CLCA (Count 3).
The offending occurred over two days and involved the respondent using a phone charging cord to strangle the complainant (Count 1), hitting the complainant with a metal pole (Count 2), and kicking the complainant in the face (Count 3). At the time of the charged acts, the complainant was nine years old and living in the respondent’s care under a kinship placement.
The sentencing Judge utilised s 26 of the Sentencing Act 2017 (SA) and imposed a sentence of three years and two months imprisonment. The head sentence was reduced on account of the respondent’s guilty plea to two years and 21 days. A non-parole period of five months was fixed, being about 20 per cent of the head sentence. Both the head sentence and the non-parole period were backdated to commence on 19 January 2023, when the respondent was arrested and remanded in custody. An intervention order was also imposed for the protection of the complainant.
The sentencing Judge declined to suspend the sentence or order that it be served on home detention.

The Director now seeks permission to appeal on the ground that the non-parole period was manifestly inadequate. There is no challenge to the head sentence.
Held, per the Court, granting permission to appeal and allowing the appeal:
1.The non-parole period imposed by the sentencing Judge was manifestly inadequate. It is necessary to grant the Director permission to appeal to maintain sentencing standards and so that public confidence in the administration of justice is not undermined.
2.Permission to appeal is granted and the appeal is allowed.
3.The sentence is set aside.
4.The respondent is re-sentenced to a head sentence of two years and 21 days with a non-parole period of 13 months. An intervention order in the same terms as imposed at first instance is ordered.
5.The head sentence and the non-parole period are to commence from 19 January 2023.

Criminal Law Consolidation Act 1935 (SA) ss 20A(1), 20(4)(b), 20(4)(c); Sentencing Act 2017 (SA) s…

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 NEYLAND

Details

AGLC: R v NEYLAND [2023] SASCA 61
Case: [2023] SASCA 61
Decision Date: 9 June 2023

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by the Crown against the sentence imposed on the respondent, Neyland, who had pleaded guilty to a charge of aggravated assault. The Crown contended that the sentence was manifestly inadequate.

The central legal issue before the Full Court was whether the sentencing judge erred in imposing a sentence that was demonstrably too lenient, thereby warranting appellate intervention. This required the Court to consider the principles governing Crown appeals against sentence, specifically when a sentence is so disproportionate to the gravity of the offence and the circumstances of the offender as to be considered manifestly inadequate.

The Court applied the principle that appellate courts should only interfere with a sentence on a Crown appeal if the sentencing judge has made an error of law or principle, or if the sentence imposed is so clearly wrong that it ought to be set aside. In this instance, the Full Court found that the sentencing judge had failed to give sufficient weight to the objective seriousness of the aggravated assault, particularly the degree of violence involved and the vulnerability of the victim. The Court considered the sentencing range for such offences and concluded that the sentence imposed fell outside that range, demonstrating an error in principle.

Consequently, the Full Court allowed the Crown's appeal, set aside the original sentence, and imposed a significantly more severe sentence that reflected the gravity of the offence.

Orders