R v Thompson - [2012] SASCFC 149

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v THOMPSON
[2012] SASCFC 149
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Anderson)
21 December 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal by the Director of Public Prosecutions against the decision of a Judge of the District Court to defer sentencing a defendant pursuant to section 19B of the Criminal Law (Sentencing) Act 1988 (SA) - the defendant was charged with aggravated assault on 11 February 2009 contrary to section 24 of the Criminal Law Consolidation Act 1935 (SA) - the defendant was also charged with the offence of aggravated causing harm with intent to cause harm on 8 November 2010 contrary to section 24(1) of the Criminal Law Consolidation Act - the defendant pleaded guilty to both offences - the proceedings were removed for hearing to the District Court to be heard at the same time - the Judge deferred sentencing the defendant in respect of all matters pursuant to section 19B of the Sentencing Act so that the defendant would have an opportunity to demonstrate that his desire to rehabilitate was ongoing and could be maintained - whether the sentencing Judge erred in ordering the deferral of the defendant’s sentencing - whether the circumstances of the offending were such that a suspended sentence was not appropriate.
Held per the Court: Appeal allowed - the gravity of the offending and the defendant’s offending history required the imposition of an immediate custodial sentence - section 19B should not have been invoked - proceeding remitted to the District Court for the defendant to be sentenced, other than by way of remand pursuant to section 19B.
Criminal Law (Sentencing) Act 1988 (SA) s 19B; Criminal Law Consolidation Act 1935 (SA) s 24, s 38 and s 39; Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA), referred to.
Griffiths v The Queen (1977) 137 CLR 293; Germain v Police [2006] SASC 340; R v Palu (2002) 134 A Crim R 174; Radjevic v Police (1997) 67 SASR 478; Watson v Police (1998) 70 SASR 515; The Queen v Kear (1977) 75 LSJS 311; Veen v The Queen (No 2) (1988) 164 CLR 465; Muldrock v The Queen (2011) 244 CLR 120; Markarian v The Queen (2005) 228 CLR 357; R v Copeland (No 2) (2010) 108 SASR 398; R v Tindall (1994) 74 A Crim R 275; R v Trindall (2002) 133 A Crim R 119; R v Brown (2009) 193 A Crim R 574; R v Alameddine [2005] NSWCCA 68; Power v The Queen (1974) 131 CLR 623; Deakin v The Queen (1984) 11 A Crim R 88; Bugmy v The Queen (1990) 169 CLR…

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 Thompson

Details

AGLC: R v Thompson [2012] SASCFC 149
Case: [2012] SASCFC 149
Decision Date: 21 December 2012

CaseChat Overview and Summary

The Director of Public Prosecutions appealed to the Supreme Court of South Australia against a decision of the District Court to defer sentencing a defendant. The defendant had pleaded guilty to two offences: aggravated assault committed on 11 February 2009, and aggravated causing harm with intent to cause harm committed on 8 November 2010. Both matters were heard together in the District Court.

The central legal issues before the Court were whether the sentencing judge erred in ordering the deferral of the defendant's sentencing under section 19B of the *Criminal Law (Sentencing) Act 1988* (SA), and whether the circumstances of the offending were such that a suspended sentence was inappropriate. The judge had deferred sentencing to allow the defendant an opportunity to demonstrate his ongoing commitment to rehabilitation.

The Court allowed the appeal, holding that the gravity of the defendant's offending and his prior offending history necessitated the imposition of an immediate custodial sentence. Consequently, the Court found that section 19B of the *Criminal Law (Sentencing) Act 1988* (SA) should not have been invoked. The proceedings were remitted to the District Court for the defendant to be sentenced, with the explicit direction that sentencing should not be by way of remand under section 19B.

Orders