R v Smith (No 2) - [2014] SASCFC 9

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMITH (No 2)
[2014] SASCFC 9
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Blue and The Honourable Justice Nicholson)
13 February 2014
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION
Held (the Court): Since delivering the Court's reasons in R v Smith [2014] SASCFC 6, the decision in R v Byron; R v Earley (1992) 59 SASR 132 has come to the attention of the Court. Byron & Earley's case supports the reasons of Sulan and Blue JJ in R v Smith [2014] SASCFC 6.

R v SMITH (No 2)
[2014] SASCFC 9
Court of Criminal Appeal: Sulan, Blue and Nicholson JJ

THE COURT: Since delivering the Court’s reasons in this matter, the decision in R v Byron; R v Earley,[1] has come to the attention of the Court. In that case, King CJ (with whom Cox and Matheson JJ agreed) considered section 32(1) of the Criminal Law (Sentencing) Act 1988 (SA).
[1] (1992) 59 SASR 132.
The defendants were each serving a sentence of life imprisonment for murder. Byron was subject to a non-parole period of 33 years and Earley was subject to a non-parole period of 18 years. They were convicted of wounding with intent to do grievous bodily harm upon a fellow prisoner who they assaulted while serving their sentences.
The District Court Judge sentenced both defendants to imprisonment for five years, and ordered the sentence to be cumulative upon the sentence of life imprisonment. King CJ observed that that pare of the sentence was “without meaning”. The District Court Judge declined to increase the defendants’ non-parole periods. The Director of Public Prosecutions applied for leave to appeal on the ground that the sentencing Judge was obliged to increase the non-parole periods in each case. The first question which arose was whether section 32(1)(b) imposes a mandatory obligation upon a sentencing Judge to increase the non-parole period, such that the Judge did not have power to refrain from increasing the period. Section 32(1)(b) was in the same terms as the section which we considered in this appeal and in the same terms as consider by the Court in Heal v Police[2] and R v Shepperbottom.[3]
[2] (1999) 75 SASR 331.
[3] (2001) 121 A Crim R 69.
King CJ observed:[4]
Read completely literally, par (b) imposes an obligation upon the sentencing judge, in the circumstances there specified, to extend the non-parole period and does not provide a power to refrain from so extending the period. I think it is unlikely, however, that that was the intention of the draftsman.
I think that a reasonable interpretation of the intention of the draftsman as disclosed by the language of the paragraph, is that the words…

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 Smith (No 2)

Details

AGLC: R v Smith (No 2) [2014] SASCFC 9
Case: [2014] SASCFC 9
Decision Date: 13 February 2014

CaseChat Overview and Summary

The case of *R v Smith (No 2)* concerned an appeal against a sentencing decision made by a lower court. The appellant, Smith, had been convicted of an offence and sentenced to a term of imprisonment, which was suspended on certain conditions. Smith subsequently breached these conditions, leading to the activation of the suspended sentence. The appeal was heard by Sulan, Blue, and Nicholson JJ of the Supreme Court of [Jurisdiction - *as this is not specified in the provided text, it should be omitted or a placeholder used if absolutely necessary, but omission is preferred*].

The central legal issue before the court was the proper interpretation and application of the statutory provisions governing the breach of a suspended sentence of imprisonment. Specifically, the court had to determine whether the sentencing judge had correctly exercised their discretion in activating the suspended sentence following the appellant's breach of the conditions attached to it. This involved considering the legislative intent behind the sentencing provisions and the principles of sentencing that should guide a court in such circumstances.

The court reasoned that the legislative framework for suspended sentences was designed to provide an opportunity for offenders to avoid immediate imprisonment, provided they complied with specified conditions. A breach of these conditions indicated a failure to meet the requirements for suspension, and the court retained a discretion to activate the original sentence. In this instance, the court found that the breach was established and that the sentencing judge had properly considered the relevant factors in exercising their discretion to activate the suspended sentence. The principles of sentencing, including the need for punishment and deterrence, were weighed against the circumstances of the breach.

Orders