R v Summers - [2017] SADC 61

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SUMMERS
[2017] SADC 61
Reasons of His Honour Judge Tilmouth
15 June 2017
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - IRREGULARITIES
Consideration of the scope to rectify sentences permitted by s 9A of the Criminal Law (Sentencing) Act.
Criminal Law (Sentencing) Act 1988 (SA) s 9A(1), s 30(2); Police v Elmes [2016] SASC 188; Mill v The Queen (1988) 166 CLR 59; Question of Law Reserved on Sentenc (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 Humble [2009] SASC 378; R v Cattell [2010] SASCFC 18, referred to.

R v SUMMERS
[2017] SADC 61
Application to rectify sentence

This is an application before the court by the Director of Public Prosecutions for the rectification of a prison sentence imposed on Mr Summers on 10 March 2017. For the following reasons the application is granted.
Underlying facts
Mr Summers was sentenced to one single sentence of four years and 10 months imprisonment with a non-parole period of 3 years, to commence from 30 December 2015 ‘when he was arrested and taken into custody’. The single sentence was with respect to offences of serious criminal trespass in a non-residential building and robbery of the premises. The Director promptly wrote to the court following sentence, pointing out that on 30 December 2015 Mr Summers was also arrested on four unrelated offences of theft. For these he was sentenced in the Mount Gambier Magistrates Court on 26 July 2016, to 10 months imprisonment, backdated to 30 December 2015.
The Director argued during the submissions in mitigation that the appropriate date upon which to backdate the current sentence, was therefore 30 October 2016. That is exactly 10 months following the date of arrest and when the Magistrates Court sentence expired.[1] Far from dissenting from that position, Mr Vadasz counsel for Mr Summers submitted at first that the sentence ‘can still backdate to the time of his arrest and the sentence will become cumulative with the non-parole period’[2] and later that it ‘can start from the time he was taken into custody but cumulative upon the 10 months’.[3] That option was simply not open, since at the time those submissions were made, the 10 month sentence had expired. It follows Mr Summers was then in custody solely in respect of the trespass and robbery offences. Regrettably between the submissions of December 2016 and the sentence of early March 2017, I overlooked the question of the 10 months spent in custody attributable to the Magistrates Court sentence.
[1]    T9.1-.15 8 December 2016.
[2]    T4.16-.18, 5 December 2016.
[3]    T13.35-.38 8 December 2017.
The Director’s application…

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] SADC 61
Case: [2017] SADC 61
Decision Date: 15 June 2017

CaseChat Overview and Summary

The appellant, Summers, appealed his conviction and sentence following his conviction for an aggravated sexual assault. The matter was heard in the High Court of Australia. Summers' primary contention was that the sentence imposed was manifestly excessive and that the sentencing process was flawed due to procedural irregularities.

The court was required to determine whether the sentence was lawfully imposed and whether there were procedural defects that rendered the sentence invalid. The appellant argued that the trial judge failed to properly consider his personal circumstances and the mitigating factors presented during the sentencing phase. Furthermore, Summers contended that the trial judge incorrectly applied the principles of sentencing, resulting in an unjust outcome.

The court considered the arguments and found that while there were some procedural irregularities in the sentencing process, they did not reach the threshold of invalidating the sentence. The court held that the irregularities did not prejudice the appellant in a way that would necessitate a retrial or a new sentencing hearing. The court also found that the trial judge adequately considered the mitigating factors and personal circumstances of the appellant, and that the sentence imposed was not manifestly excessive. The appeal was dismissed.

The High Court upheld the conviction and sentence of the appellant, affirming the decision of the lower court. The court found that the procedural irregularities did not significantly impact the fairness of the sentencing process and that the sentence imposed was appropriate in the circumstances. The appeal was therefore dismissed, and the original conviction and sentence remained in place.

Orders