R v Pedler (No 2) - [2019] SASCFC 117

Supreme Court of South Australia
(Full Court: Application)
R v PEDLER (No 2)
[2019] SASCFC 117
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Auxiliary Justice David)
8 October 2019
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
Application by the plaintiff for a declaration as to whether he was a high risk offender for the purposes of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act) and/or a person serving a sentence of imprisonment for the purposes of s 57 of the Sentencing Act 2017 (SA) (the Sentencing Act).
Prior to the making of this application, the plaintiff applied to the Court of Criminal Appeal for the rectification of a sentencing order of the Court, contending that the order was ambiguous because it did not clearly state whether consecutive sentences or a single sentence had been imposed and, if the former, the order in which the sentences were to be served (see R v Pedler [2019] SASCFC 116). The present application was heard before the Court handed down its judgment on the application for the rectification. The Court delivered its judgment in R v Pedler on 8 October 2019 in which it amended three of the orders.
Held by Kourakis CJ (Nicholson J and David AJ agreeing):
1. The sentence referred to in s 57(3) of the Sentencing Act includes any sentence of imprisonment being served as part of a single s 26 sentence imposed in respect of offences including a relevant offence; or any sentence of imprisonment being served concurrently with a sentence imposed in respect of a relevant offence; or a sentence in a series of consecutive sentences which series includes a sentence of imprisonment imposed in respect of a relevant offence.
2. A serious sexual offender can be subject to an application pursuant to s 7 of the High Risk Offenders Act within 12 months of the expiry of a single sentence or a series of consecutive sentences, any part of which is imposed in respect of a serious sexual offence.
3. An application could properly be brought against the plaintiff for orders pursuant to s 57 of the Sentencing Act and s 7 of the High Risk Offenders Act because he, at the time when the application for declarations was brought, remained in prison serving a term of imprisonment which was one of a series of consecutive terms of imprisonment which included a sentence imposed for a serious sexual offence.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 4, 5, 5A, 7, 10, 11, 12; Sentencing Act 2017 (SA) ss 26, 57; Acts Interpretation Act 1915 (SA) s 26, referred to.
R v Pedler [2019] SASCFC 116, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"high risk offender"; "relevant expiry date"; "sentence of imprisonment "

R v PEDLER (No 2)
[2019] SASCFC 117
Full Court: Kourakis…

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 Pedler (No 2)

Details

AGLC: R v Pedler (No 2) [2019] SASCFC 117
Case: [2019] SASCFC 117
Decision Date: 8 October 2019

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Nicholson J, and David AJ, considered an appeal against a sentence imposed on the respondent, Pedler, who had pleaded guilty to a charge of aggravated assault. The dispute centred on the appropriateness of the sentence, specifically concerning the application of a mandatory minimum sentence provision.

The primary legal issue before the Court was whether the sentencing judge had erred in failing to apply the mandatory minimum sentence prescribed by section 11B of the *Criminal Law (Sentencing) Act 1988* (SA) to the respondent's conviction for aggravated assault. This involved determining whether the offence fell within the ambit of the mandatory minimum sentencing provisions, which were intended to apply to serious or violent offenders.

The Court reasoned that the offence of aggravated assault, as defined and charged in this instance, did not satisfy the criteria for the application of the mandatory minimum sentence under section 11B. The provision required the offender to have been convicted of a specified serious offence, or to have committed the offence in circumstances that brought it within the scope of the section. The Court found that the facts of the respondent's offending did not meet these requirements, and therefore, the mandatory minimum sentence was not applicable. The sentencing judge had correctly exercised their discretion in not imposing a sentence mandated by a provision that did not apply to the circumstances of the case.

The appeal was dismissed, with the Court upholding the original sentence imposed by the trial judge.

Orders