R v SMITH

[2004] SASC 275

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Leave to Appeal in Private)

R v SMITH

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Bleby)

15 September 2004

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Application for leave to appeal against sentence - appellant pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence two counts of rape and aggravated robbery - appellant sentenced to 15 years with a non-parole period of 11 years - whether sentence manifestly excessive - leave to appeal granted.

Supreme Court Criminal Appeal Rules  1996 r 15(8)(b), referred to.

R v SMITH
[2004] SASC 275

Court of Criminal Appeal:  Leave to Appeal in Private

1. Doyle CJ, Duggan and Bleby JJ   This is an application for leave to appeal against sentence.

2. A Judge of the District Court sentenced the applicant to imprisonment for 15 years, with a non-parole period of 11 years.  The applicant had pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence, two counts of rape and aggravated robbery.  Those offences were committed on one occasion.  The applicant had also pleaded guilty to further offences of serious criminal trespass in a place of residence and larceny, that offending having occurred on another occasion.

3. The applicant complains that the sentence is manifestly excessive.

4. A Judge of this Court refused leave to appeal.

5. The applicant requested that his application for leave to appeal be considered and determined by the Full Court.  He did not ask the Court to exercise its power under r 15(8)(b) of the Supreme Court Criminal Appeal Rules 1996 to order that the application be listed for oral argument.

6. The Court, comprised of the Chief Justice, Duggan J and Bleby J has considered the matter on the basis of the papers available to it.

7. We are unanimously of the opinion that the applicant has an arguable case, and accordingly leave to appeal should be granted.

8. The order of the Court is that leave to appeal be granted.