R v ROBINSON - [2024] SASCA 118

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v ROBINSON
[2024] SASCA 118
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice S Doyle and the Honourable Justice Bleby)
16 October 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
This is an application by the Director of Public Prosecutions for permission to appeal against sentence.
Following a plea of guilty, the respondent was sentenced for one count of attempting to prevent or dissuade a person from giving evidence in a judicial proceeding in contravention of s 244(3)(b) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for that offence is imprisonment for 10 years.
From a starting point of four months and two weeks imprisonment, but after reductions for the respondent’s guilty plea and time served, the sentencing magistrate imposed a sentence of three months and 10 days imprisonment. The magistrate partially suspended the sentence, with the respondent required to serve one month in custody before being released upon entering into a bond to be of good behaviour for 12 months.
The Director seeks permission to appeal on two grounds: first, that the sentence imposed was manifestly inadequate; and secondly, that the magistrate erred in partially suspending the respondent’s sentence under s 96(4) of the Sentencing Act 2017 (SA) without considering whether there were ‘exceptional circumstances’ for doing so under s 96(6) of that Act.
Held (per the Court), refusing permission to appeal:
1.Having regard to the seriousness of the respondent’s offending, and his personal circumstances, the sentence imposed was manifestly inadequate.
2.The sentence imposed was infected by a process error as the magistrate erred in the exercise of his discretion to partially suspend the sentence under s 96(6)(b) of the Sentencing Act 2017 (SA).
3.However, having regard to the nature and significance of the errors, and the principle of double jeopardy, this is not a case in which it is appropriate to grant permission to appeal. In particular, the sentence imposed was not so low that allowing it to stand would undermine public confidence in the administration of justice, and it is otherwise sufficient that this Court provide the guidance contained in these reasons.

Criminal Law Consolidation Act 1935 (SA) s 244(3)(b); Magistrates Court Act 1991 (SA) s 42(2)(ab); Sentencing Act 2017 (SA) ss 96(1), 96(3)(c), 96(4), 96(6), 96(6)(a), 96(6)(b), 96(9), referred to.
House v The King (1936) 55 CLR 499; R v Buttigieg [2020] SASCFC 38; R v Jenner (2000) 110 A Crim R 512; R v Jones [2022] SASCA 105; R v Kelly [2023] SASCA 22; R v McIntyre (2020) 138 SASR 17; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Ossitt [2011] SASCFC 23; R v Singh [2024] SASCA 81; R v White [1999] SASC 43; R v Wilson [2024] SASCA 20; R v Yaroslavceff [2022] SASCA 123, considered.

R…

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 ROBINSON

Details

AGLC: R v ROBINSON [2024] SASCA 118
Case: [2024] SASCA 118
Decision Date: 16 October 2024

CaseChat Overview and Summary

In *R v Robinson*, the Director of Public Prosecutions sought leave to appeal against a sentence imposed on the respondent, Robinson. The appeal was heard by Lovell, S Doyle, and Bleby JJ.

The central legal issue before the court was whether the Director's grounds of appeal, concerning the sentence imposed, had sufficient merit to warrant granting leave to appeal.

The court acknowledged that the Director's submissions had merit. However, after careful consideration of all aspects of the case, the court was not ultimately satisfied that it was appropriate to grant permission to appeal. Accordingly, permission to appeal was refused.

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

Having given careful consideration to all of the above, we are not ultimately satisfied that it is appropriate to grant permission to appeal.Conclusion For the reasons set out, whilst there is merit in the Director’s submissions in support of his two proposed grounds of appeal, we refuse permission to appeal.

Ratio Decidendi

Legal Principle Established

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