R v SCOTT-COMBE - [2023] SASCA 37

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v SCOTT-COMBE
[2023] SASCA 37
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Auxiliary Justice Mazza)
13 April 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
The issue on appeal is whether the sentencing Judge was correct in not declaring, nor sentencing, the respondent as a 'serious repeat offender' as he determined that imprisonment, as used in the definition of 'serious offence', did not include terms of detention. On appeal, the appellant contended that imprisonment, as used in the definition of 'serious offence', includes terms of detention.
Held, per the Court, dismissing the appeal:
1.Imprisonment as used in the definition of serious offence does not include terms of detention.
2.The sentencing Judge did not fall into error by not declaring, or sentencing, the respondent as a 'serious repeat offender'.

Correctional Services Act 1982 (SA); Criminal Law Consolidation Act 1935 (SA); Sentencing Act 2017 (SA) ss 6, 52, 53, 54 & 55; Young Offenders Act 1993 (SA), referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Attorney-General (SA) v Smith [2020] SASC 108; House v The King (1936) 55 CLR 499; Lee v New South Wales Crime Commission (2013) 251 CLR 196; Question of Law Reserved (No 1 of 2021) [2021] SASCA 148; The Queen v A2 (2019) 269 CLR 507, considered.

R v SCOTT-COMBE
[2023] SASCA 37
Court of Appeal – Criminal: Lovell, Bleby JJA and Mazza AJA

THE COURT: The issue on appeal is whether the sentencing Judge was correct in deciding that the respondent was not a ‘serious repeat offender’ for the purpose of s 53 of the Sentencing Act 2017 (SA) (‘the Act’). The sentencing Judge determined that the respondent was not a ‘serious repeat offender’ meaning he was not required to fix a non-parole period of at least four fifths of the head sentence. The appellant appeals that ruling submitting that, as a matter of law, the respondent fell within the definition of a ‘serious repeat offender’.
Background
The respondent has an extensive criminal history dating back to 2015. His antecedents include, inter alia, driving offences, trespassing and breaching bail. The sentences imposed for three offences are relevant to this appeal.
On 22 June 2017, the respondent was convicted of aggravated dangerous driving to escape police pursuit, contrary to s 19AC(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (‘the 2017 offence’). The maximum penalty is five years imprisonment. Pursuant to s 52(b)(iv) of the Act, this is designated a ‘serious offence’ provided the accused was sentenced to a term of imprisonment. The respondent was a youth at…

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 SCOTT-COMBE

Details

AGLC: R v SCOTT-COMBE [2023] SASCA 37
Case: [2023] SASCA 37
Decision Date: 13 April 2023

CaseChat Overview and Summary

The appeal concerned the interpretation of sentencing provisions under the *Serious and Repeat Offender Legislation Amendment Act 2021* (SA). The appellant, the Crown, appealed against the sentencing decision of a judge who declined to declare the respondent a 'serious repeat offender'. The core of the dispute revolved around whether the definition of 'serious offence' within the relevant legislation encompassed terms of detention.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the term 'imprisonment' as used in the definition of a 'serious offence' included 'terms of detention'. This interpretation was critical to determining whether the respondent qualified as a 'serious repeat offender' under the Act. The Crown argued that the sentencing judge erred by not including terms of detention within the meaning of imprisonment for the purposes of this classification.

The Court dismissed the appeal, holding that 'imprisonment' as used in the definition of a 'serious offence' does not include terms of detention. Consequently, the sentencing judge did not err in failing to declare or sentence the respondent as a 'serious repeat offender'. The Court's reasoning affirmed a distinction between imprisonment and detention for the purposes of this specific legislative provision.

Orders

Orders of the court

The issue on appeal is whether the sentencing Judge was correct in not declaring, nor sentencing, the respondent as a 'serious repeat offender' as he determined that imprisonment, as used in the definition of 'serious offence', did not include terms of detention. On appeal, the appellant contended that imprisonment, as used in the definition of 'serious offence', includes terms of detention.

Held, per the Court, dismissing the appeal:

1. Imprisonment as used in the definition of serious offence does not include terms of detention.

2. The sentencing Judge did not fall into error by not declaring, or sentencing, the respondent as a 'serious repeat offender'.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.