R v Sykes - [2017] SASCFC 59

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SYKES
[2017] SASCFC 59
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Parker)
31 May 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
The appellant pleaded guilty to aggravated serious criminal trespass in a place of residence, aggravated kidnapping, aggravated threaten life, aggravated indecent assault, aggravated assault causing harm, two counts of aggravated threaten harm, and threaten harm. Appellant was sentenced to 15 years imprisonment reduced by 30% in recognition of guilty plea, resulting in a head sentence of ten years and six months. The appellant also pleaded guilty to breach of the intervention order. For the breach of the intervention order appellant was sentenced to one year imprisonment reduced by 40% in recognition of guilty plea, resulting in a head sentence of seven months imprisonment. The two sentences were made cumulative so that the appellant was sentenced to a total of 11 years and one month imprisonment with a six year non-parole period.
Appellant submitted that the head sentence was manifestly excessive, the non-parole period was manifestly excessive, that the sentencing judge had inadequate regard to matters personal to the appellant and placed too much weight on the need for general and personal deterrence.
Held, per Parker J (Vanstone J and Blue J agreeing), dismissing the appeal:
1. It follows from the decision of this Court in R v Lutze (2014) 121 SASR 144 that adopted the comments of the Chief Justice in Police v Chilton (2014) 120 SASR 32 that the complaints of inadequate weight and excessive weight do not point to an appellable error and cannot succeed.
2. The sentencing judge took into account all relevant matters personal to the appellant including the fact he had not previously been convicted, his age and work history and his statement of remorse. These subjective considerations were weighted by the judge against the objective circumstances of offending. There was no process error.
3. The head sentence was within the range available to the judge. The sentence was not manifestly excessive.
4. The non-parole period sufficiently reflected the appellant’s lack of a criminal record and his good work history. The non-parole period was not manifestly excessive.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
Police v Chilton (2014) 120 SASR 32; R v Jackson [2007] SASC 332; R v Lutze (2014) 121 SASR 144; R v Siviour [2016] SASCFC 51, discussed.

R v SYKES
[2017] SASCFC 59
Court of Criminal Appeal: Vanstone, Blue and Parker JJ

VANSTONE J: I would dismiss the appeal for the reasons written by Parker J.
BLUE J: I agree with Parker J.
PARKER J: This is an appeal against sentence.…

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 Sykes

Details

AGLC: R v Sykes [2017] SASCFC 59
Case: [2017] SASCFC 59
Decision Date: 31 May 2017

CaseChat Overview and Summary

The appeal concerned the sentencing of Mr Sykes, who was appealing against a sentence imposed by a judge of the District Court of South Australia. The appeal was heard by Vanstone, Blue and Parker JJ of the Supreme Court of South Australia.

The primary legal issue before the Full Court was whether the non-parole period of six years, which represented approximately 54% of the total sentence of 11 years and one month, was manifestly excessive. This involved considering whether the sentencing judge had adequately taken into account Mr Sykes' lack of a criminal record and his good work history, while also balancing these factors against the seriousness of the offending and concerns regarding rehabilitation and community safety.

The Court found that the sentencing judge had indeed considered Mr Sykes' personal circumstances, including his lack of prior convictions and positive work history. However, these mitigating factors were weighed against the gravity of the offences and the need to protect the community. The Court concluded that the non-parole period was not demonstrably excessive in light of these considerations.

Consequently, the appeal was dismissed on all grounds.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The non-parole period of six years was about 54% of the head sentence of 11 years and one month. I reject the submission that the non-parole period did not sufficiently reflect the appellant’s lack of a criminal record and his good work history. The judge specifically took those matters into account but also considered the serious nature of the offending, the concerns about the appellant’s rehabilitation and community safety. I do not consider the non-parole period to be manifestly excessive. I would dismiss the appeal on ground 2. Conclusion I would dismiss the appeal on all four grounds.

Ratio Decidendi

Legal Principle Established

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