R v Owen - [2017] SASCFC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v OWEN
[2017] SASCFC 74
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Hinton)
30 June 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - FAILURE TO EXERCISE DISCRETION
Appeal against refusal to suspend sentence. The appellant pleaded guilty to two counts of trafficking in a controlled drug and one count of unlawful possession. The sentencing Judge imposed a single sentence of two years, nine months, one week and six days imprisonment, and fixed a non-parole period of twelve months. The sentence was not suspended.
On appeal, the appellant contended that the Judge erred in failing to suspend the sentence of imprisonment. The failure to suspend was challenged on two bases: that the Judge sentenced on the basis of a material misapprehension of fact as to the period of the appellant’s offending; and that, even absent any error, the failure to suspend was not open to the Judge in all the circumstances.
Held per Nicholson J (Stanley and Hinton JJ agreeing), dismissing the appeal:
1. The appellant has not established that the Judge sentenced on the basis of a material misapprehension of fact.
2. The Judge did not err in refusing to exercise the discretion to suspend.
Criminal Law (Sentencing) Act 1988 s 18A, s 38; Controlled Substances Act 1984 s 32; Summary Offences Act 1953 s 41; Correctional Services Act 1982 s 37A, referred to.
R v Jongewaard [2009] SASC 346, considered.

R v OWEN
[2017] SASCFC 74
Court of Criminal Appeal: Stanley, Nicholson and Hinton JJ
STANLEY J.

I would dismiss the appeal. I agree with the reasons of Nicholson J.
NICHOLSON J.
Introduction
On 3 February 2017, Sean Edward Owen, the appellant,[1] was sentenced to imprisonment for two years, nine months, one week and six days with a non-parole period of 12 months for two counts of trafficking in a controlled drug[2] and one count of unlawful possession.[3] A single sentence to this effect was imposed pursuant to section 18A of the Criminal Law (Sentencing) Act 1988. The sentence was not suspended and was backdated to commence 19 October 2016.
[1] A single Judge of this Court granted permission to appeal on 8 May 2017.
[2] Contrary to section 32(3) of the Controlled Substances Act 1984.
[3] Contrary to section 41(1) of the Summary Offences Act 1953.
The notice of appeal contains two grounds of appeal.
1.The learned sentencing Judge erred in failing to suspend the sentence of imprisonment.
2.The learned sentencing Judge erred in sentencing remarks by stating that I was introduced in March 2015 instead of March 2016 as was the case.
The…

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 Owen

Details

AGLC: R v Owen [2017] SASCFC 74
Case: [2017] SASCFC 74
Decision Date: 30 June 2017

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, R v Owen, before the Court of Appeal of the Supreme Court of Queensland. The dispute centred on the sentencing judge's decision not to suspend the term of imprisonment imposed on the appellant.

The primary legal issue before the Court of Appeal was whether the sentencing judge erred in refusing to suspend the sentence of imprisonment. This involved determining whether the judge had properly considered all relevant factors and whether the decision not to suspend rendered the overall sentence manifestly excessive.

The Court of Appeal found that the sentencing judge's remarks, when read as a whole, demonstrated a proper consideration of the circumstances of the offending, the appellant's personal circumstances, and the principle of deterrence. The judge was not satisfied that there were good reasons to suspend the sentence. Consequently, the Court concluded that there was no material misapprehension of fact by the sentencing judge and that the refusal to suspend did not make the sentence manifestly excessive. The appeal was therefore dismissed.

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

STANLEY J (dissent) NICHOLSON J (dissent)

The criticism is not justified. Upon reading the sentencing remarks as a whole, the Judge had regard to the relevant considerations relating to the circumstances of the offending, the appellant’s personal circumstances and the role of deterrence and found himself not satisfied that good reason existed to suspend. Conclusion I am not satisfied that the Judge sentenced, including arriving at his decision not to suspend, on the basis of a material misapprehension of fact. The failure to suspend did not render the sentence as a whole manifestly excessive. There was no error by the Judge attending the refusal to suspend the sentence imposed and I would dismiss the appeal. I agree with Nicholson J for the reasons he gives that the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by:

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