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R v Summers

R v Summers

Case [2017] SASCFC 141 27 October 2017

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SUMMERS
[2017] SASCFC 141
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Bampton)
27 October 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES
Application for permission to appeal against a decision by a District Court Judge to rectify the commencement date of a prison sentence pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (the Act).
On 30 December 2015, the applicant was arrested for the two subject offences and also for four separate theft offences. He was first sentenced by a Magistrate to ten months imprisonment for the four theft offences, backdated to the date of arrest. When the District Court Judge later sentenced for the subject offences, he forgot to implement the timetable that he had previously decided upon, namely to backdate to the expiration of the ten month sentence; instead he erroneously backdated to 30 December 2015, the date of arrest. Subsequently the Judge ordered that the sentence be rectified pursuant to s 9A of the Act so as to commence upon the expiration of the ten month sentence.
Held per Peek J (Nicholson and Bampton JJ agreeing) refusing permission to appeal:
(1)     The sentence is not manifestly excessive. The Judge had appropriate regard to the seriousness of the offending and the applicant’s personal circumstances, including his previous record of continued imprisonment coupled with continued serious offending on release.
(2)     Having regard to the clear separation between the theft offences and the subject offences, it was open to the Judge to order that the subject sentence was to commence upon the expiration of the ten month period of imprisonment imposed by the Magistrate.
(3)     The use of s 9A of the Act in order to rectify the commencement date of the sentence was a course which was both available to the Judge and appropriate in the circumstances.
Criminal Law (Sentencing) Act 1988 ss 9A, 18A, 30; Criminal Law Consolidation Act 1935 ss 137, 169, referred to.
Police v Elmes [2016] SASC 188; Mill v The Queen (1988) 166 CLR 59; Question of Law Reserved on Sentence (No 1) (1996) 67 SASR 90; R v Rajkovic (2015) 123 SASR 51; R v Fraser [2007] SASC 257; Sullivan v Police [2010] SASC 216; R v Kuci [2016] SASCFC 136; R v Hussey [2013] SASCFC 41; R v Sansone [2015] SASCFC 168; R v Baldetti [2008] SASC 232; R v Hudson (2016) 125 SASR 171; R v Huble [2009] SASC 378; R v Cattell [2010] SASCFC 18, considered.

R v SUMMERS
[2017] SASCFC 141
Court of Criminal Appeal: Peek, Nicholson and Bampton JJ

PEEK J.

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 Summers

Details

AGLC: R v Summers [2017] SASCFC 141
Case: [2017] SASCFC 141
Decision Date: 27 October 2017

CaseChat Overview and Summary

The applicant, R v Summers, sought permission to appeal against a sentence imposed by the court. The dispute concerned the sentencing of the applicant, specifically the imposition of cumulative sentences. The matter was heard by Peek, Nicholson, and Bampton JJ.

The primary legal issue before the court was whether the sentencing judge had erred in imposing cumulative sentences, and whether the time spent in custody prior to sentencing was a relevant factor that should have been given greater weight. The court was required to consider the principles governing the imposition of cumulative sentences and the discretion of the sentencing judge in relation to pre-sentence custody.

Peek J, whose reasons were adopted by Nicholson and Bampton JJ, concluded that permission to appeal should be refused. The court found that the grounds of appeal concerning the cumulative sentence and the consideration of time spent in custody were without merit. The decision implicitly affirmed the sentencing judge's discretion in imposing cumulative sentences and the appropriate consideration of pre-sentence custody within that framework.

The application for permission to appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J NICHOLSON J

I would refuse permission to appeal on proposed grounds 2 and 3 of appeal.Conclusion and disposition I propose that the application for permission to appeal be dismissed. I agree that the application should be dismissed for the reasons given by Peek J. BAMPTON J: I agree with the reasons of Peek J and the dismissal of the application.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J, NICHOLSON J

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Citations

R v Summers [2017] SASCFC 141

Most Recent Citation

R v Hunt [2018] SASCFC 137

Cases Citing This Decision

R v Hunt [2018] SASCFC 137
Citation 1 (Para 31)

…n of sentences or non-parole periods, in the context of taking proper account of time spent in custody referable to the subject offending. [10] [2017] SASCFC 141. [11] [2013] SASCFC 41 at [8]. [12] [2015] SASCFC 168 at [8]-[9]. [13] [2008] SASC 232 at [10]-[11]. [14] (2016) 125 SASR 171 at [24]-[25]. [15] [2017] SAS…
Kingswell v The Queen [1985] HCA 72
Citation 2

…35. Although the terms of the particular statute must be construed to determine whether a previous conviction which exposes an offender to liability for a greater punishment for a second offence must be charged in an indictment, the prima facie rule is that no sentence legally dependent on a previou…
Thomas v The Queen [1960] HCA 2
Citation 3

…4. But, although the direction conveyed by the words taken as a whole and in relation to the rest of the charge must be said to be erroneous, I would point out that many of his Honour's phrases taken by themselves are not without precedent and approval. The reference to "the more serious matters tha…

See all citing cases →

Cases Cited

R v Summers [2017] SADC 61
Citation 1 (Para 16)

…oceeded to so order, pursuant to s 9A of the Act. The Judge later furnished settled reasons dated 15 June 2017 and therein stated:[1] [1] R v Summers [2017] SADC 61. The intention at the time of sentence was to give Mr Summers full credit for time spent in custody referable to the trespass and robbery offences. I…
R v Simmons [2017] SASCFC 49
Citation 2 (Para 19)

…d form requesting that the application for permission to appeal be referred to and determined by the Full Court.[18] [18] See generally R v Simmons [2017] SASCFC 49, [36]-[38]. The hearing before this Court…
R v Kuci [2016] SASCFC 136
Citation 3 (Para 16)

…ny credit he was entitled for time spent in custody has been taken into account in my sentence today’: Police v Summers .[17] [9] [2016] SASCFC 136, [6]. [10] [2013] SASCFC 41, [8]. [11] [2015] SASCFC 168, [8]-[9]. [12] [2008] SASC 232, [10]-[11]. [13] (2016) 125 SASR 171, [24]-[25]. [14] [2009] SASC 378, [33]-[34],…
Police v Elmes [2016] SASC 188
Citation 4 (Para 16)

…ently sentenced’. The authorities were extensively reviewed recently by Peek J in Police v Elmes ,[3] so there is no need to repeat them. [3] [2016] SASC 188, [32], [46], [53], [55]. The effect of the totality principle is to require a sentencing court passing a number of sentences, to review the aggregate sentenc…
R v Sansone [2015] SASCFC 168
Citation 5 (Para 16)

…een taken into account in my sentence today’: Police v Summers .[17] [9] [2016] SASCFC 136, [6]. [10] [2013] SASCFC 41, [8]. [11] [2015] SASCFC 168, [8]-[9]. [12] [2008] SASC 232, [10]-[11]. [13] (2016) 125 SASR 171, [24]-[25]. [14] [2009] SASC 378, [33]-[34], [45]. [15] [2010] SASCFC 18, [5], [21]-[26]. [16] (1996)…
R v Rajkovic [2015] SASCFC 81
Citation 6 (Para 16)

…(No 1), [5] R v Rajkovic .[6] The circumstances in which the section may be properly utilised, include: [5] (1996) 67 SASR 90, 93. [6] (2015) 123 SASR 51, [11], [34]. -correcting errors due to misapprehensions as to the length of an unexpired term of a non-parole period: R v Fraser ,[7] Sullivan v Police ;[8] [7] [2…
R v Hussey [2013] SASCFC 41
Citation 7 (Para 16)

…time spent in custody has been taken into account in my sentence today’: Police v Summers .[17] [9] [2016] SASCFC 136, [6]. [10] [2013] SASCFC 41, [8]. [11] [2015] SASCFC 168, [8]-[9]. [12] [2008] SASC 232, [10]-[11]. [13] (2016) 125 SASR 171, [24]-[25]. [14] [2009] SASC 378, [33]-[34], [45]. [15] [2010] SASCFC 18…
R v Cattell [2010] SASCFC 18
Citation 8 (Para 16)

…C 168, [8]-[9]. [12] [2008] SASC 232, [10]-[11]. [13] (2016) 125 SASR 171, [24]-[25]. [14] [2009] SASC 378, [33]-[34], [45]. [15] [2010] SASCFC 18, [5], [21]-[26]. [16] (1996) 67 SASR 90, 93-94. [17] MCMTG-15-1855, [5]. The application for permission to appeal to the single Judge…
Sullivan v Police [2010] SASC 216
Citation 9 (Para 16)

…s to the length of an unexpired term of a non-parole period: R v Fraser ,[7] Sullivan v Police ;[8] [7] [2007] SASC 257, [13]-[17]. [8] [2010] SASC 216, [13], [16]. -correcting calculation errors in the appropriate discount for early pleas of guilty: R v Kuci ;[9] -to take proper account of time spent in custody r…
R v Humble [2009] SASC 378
Citation 10 (Para 16)

…2013] SASCFC 41, [8]. [11] [2015] SASCFC 168, [8]-[9]. [12] [2008] SASC 232, [10]-[11]. [13] (2016) 125 SASR 171, [24]-[25]. [14] [2009] SASC 378, [33]-[34], [45]. [15] [2010] SASCFC 18, [5], [21]-[26]. [16] (1996) 67 SASR 90, 93-94. [17] MCMTG-15-1855, [5]. The application for permission to appeal to the single J…
R v Baldetti [2008] SASC 232
Citation 11 (Para 16)

…ence today’: Police v Summers .[17] [9] [2016] SASCFC 136, [6]. [10] [2013] SASCFC 41, [8]. [11] [2015] SASCFC 168, [8]-[9]. [12] [2008] SASC 232, [10]-[11]. [13] (2016) 125 SASR 171, [24]-[25]. [14] [2009] SASC 378, [33]-[34], [45]. [15] [2010] SASCFC 18, [5], [21]-[26]. [16] (1996) 67 SASR 90, 93-94. [17] MCMTG-…
R v Fraser [2007] SASC 257
Citation 12 (Para 16)

…errors due to misapprehensions as to the length of an unexpired term of a non-parole period: R v Fraser ,[7] Sullivan v Police ;[8] [7] [2007] SASC 257, [13]-[17]. [8] [2010] SASC 216, [13], [16]. -correcting calculation errors in the appropriate discount for early pleas of guilty: R v Kuci ;[9] -to take proper ac…
Mill v The Queen [1988] HCA 70
Citation 13

…s. Criminal Law (Sentencing) Act 1988 ss 9A, 18A, 30; Criminal Law Consolidation Act 1935 ss 137, 169, referred to. Police v Elmes [2016] SASC 188; Mill v The Queen (1988) 166 CLR 59; Question of Law Reserved on Sentence (No 1) (1996) 67 SASR 90; R v Rajkovic (2015) 123 SASR 51; R v Fraser [2007] SASC 257; Sullivan v Poli…

Legislation Cited

Criminal Law (Sentencing) Act 1988 (SA) 18A, 30, 9A
4 mentions (from Para 1)
Criminal Law Consolidation Act 1935 (SA) 137, 169
2 mentions