R v Sevo

Case [2006] SASC 124 28 April 2006

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SEVO
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice White)
28 April 2006
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW
Appeal against sentence - whether trial Judge erred in applying s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to a number of offences - error of law made out - trial Judge failed to distinguish between notional and indicative sentences and the sentences actually imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) - matter remitted to the District Court for re-sentencing.
Criminal Law Consolidation Act 1935 (SA) s 29(3), s 86A, s 169, s 170, s 170(1), s 270A(3)(c), s 353(4)(a)(ii); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Road Traffic Act 1961 (SA) s 46(1), s 46(3), referred to.
R v Major (1998) 70 SASR 488; R v Gale (1999) 74 SASR 235; R v Waugh (2005) 93 SASR 274; Police v Nowak (2000) 76 SASR 551, applied.
R v Rossi (1988) 142 LSJS 451, discussed.
R v Symonds [1999] SASC 217; R v P (2003) 87 SASR 287; R v Gibbs (2004) 89 SASR 30; R v B, BWK (2005) 91 SASR 200; Postiglione v The Queen (1997) 189 CLR 295; Johnson v R [2005] HCA 15; R v Place (2002) 81 SASR 395; R v Becker (2005) 91 SASR 498, considered.

R v SEVO
[2006] SASC 124
Court of Criminal Appeal: Doyle CJ, Bleby and White JJ

DOYLE CJ: At the hearing of this appeal against sentence the Court allowed the appeal, set aside the sentence imposed by the District Court, and remitted the matter to the District Court pursuant to s 353(4)(a)(ii) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) for re-sentencing by another judge.
The Court did so without hearing full submissions on the appeal. It made these orders because the sentences were wrong in law, making it necessary in any event that Mr Sevo be re-sentenced.
I propose to identify, as briefly as I can, the errors affecting the sentences imposed.
Mr Sevo pleaded in the District Court and in the Magistrates Court to no less than 35 offences committed between August 2003 and August 2004. The Judge sentenced him in respect of all of the offences.
For present purposes it is not necessary to list all of the offences. They included offences of serious criminal trespass in a place of residence contrary to s 170 of the CLCA; offences of serious criminal trespass in non-residential premises contrary to s 169 of the CLCA; offences of theft of property from some of these premises; an offence of creating a risk of bodily harm contrary to s 29(3) of the CLCA; three…

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 Sevo

Details

AGLC: R v Sevo [2006] SASC 124
Case: [2006] SASC 124
Decision Date: 28 April 2006

CaseChat Overview and Summary

The appeal in R v Sevo concerns the sentence imposed by the trial Judge in the District Court of South Australia. The defendant, Sevo, was convicted of multiple offences and the appeal focused on the application of section 18A of the Criminal Law (Sentencing) Act 1988 (SA) by the trial Judge. Sevo argued that the Judge had erred in the sentencing process by not correctly distinguishing between notional and indicative sentences as prescribed by section 18A.

The legal issue at the core of this appeal was whether the trial Judge had correctly applied the sentencing provisions of section 18A of the Act. Specifically, it was contended that the Judge failed to appropriately differentiate between the notional and indicative sentences, which led to an incorrect application of the sentencing principles. This misapplication was deemed to constitute a legal error that warranted an appeal and a potential re-sentencing.

The Court of Appeal determined that the trial Judge had indeed erred in applying section 18A, as he did not distinguish adequately between the notional and indicative sentences, which are integral to the correct implementation of the sentencing provisions. The failure to make this distinction resulted in a legal error that affected the fairness and accuracy of the sentence imposed. Consequently, the Court found that the error warranted the appeal and the matter was remitted to the District Court for re-sentencing.

The final order of the Court of Appeal was that the appeal be allowed, the convictions be upheld, and the matter be remitted to the District Court for re-sentencing in accordance with the correct application of section 18A of the Criminal Law (Sentencing) Act 1988 (SA).

Orders