R v Tilley - [2010] SASCFC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TILLEY
[2010] SASCFC 73
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Anderson and The Honourable Justice Peek)
16 December 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT
Appeal against sentence – appellant convicted of aggravated threatening life and commenced serving sentence for that offence – appeal against conviction allowed and appellant released on bail pending re-trial – subsequently appellant pleaded guilty to lesser charge of threatening life – sentencing Judge imposed 19 months imprisonment with non-parole period of 14 months – appellant had spent in total 14 months 22 days in custody throughout proceedings but was on bail at time of sentencing for threatening life offence – sentence backdated by 14 months – period of 14 months backdated included time when appellant was not in custody – as a result of backdating appellant able to immediately apply for parole – whether backdating sentence inappropriate in the circumstances – whether sentence manifestly excessive – whether sentencing Judge erred in backdating the sentence by 14 months and not 14 months 22 days.
HELD: Appeal dismissed – s 30(2) of the Criminal Law (Sentencing) Act 1988 (SA) authorised the sentencing Judge to backdate the sentence despite the fact that the appellant was not in custody up to the date of sentencing – s 30(2) applies regardless of the fact that time spent in custody was in relation to a more serious offence – sentencing Judge was justified in deciding that a period of parole was appropriate and imposition of parole period could not be achieved without backdating the sentence – backdating the sentence to include time not in custody appropriate in the circumstances – sentence not manifestly excessive – sentencing Judge not bound to backdate the sentence to cover precise number of days spent in custody.
Criminal Law (Sentencing) Act 1988 (SA) s 30(1), s 30(2); Prison Act 1869 (SA) s 32; Prisons Act 1936 (SA) s 24(1); Correctional Services Act 1982 (SA) s 21, referred to.
R v P, NJ (No 4) (2008) 183 A Crim R 461; R v Garrett (1978) 18 SASR 308; R v Jamieson (1988) 50 SASR 130; R v Colson (1999) 73 SASR 407; PNJ v R (2008) 193 A Crim R 54; R v Newman (2004) 145 A Crim R 361, considered.

R v TILLEY
[2010] SASCFC 73
Court of Criminal Appeal: Duggan, Anderson and Peek JJ

DUGGAN J: The appellant was found guilty by a jury of the offence of aggravated threatening life. He was sentenced to imprisonment for three years with a non‑parole period of two years. The Court ordered that the head sentence and the non-parole period were to commence on 19 June 2008.
The appellant appealed against his conviction and, on 4 September 2009, the Court of Criminal…

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 Tilley

Details

AGLC: R v Tilley [2010] SASCFC 73
Case: [2010] SASCFC 73
Decision Date: 16 December 2010

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant by a sentencing judge. The appellant had initially been convicted of aggravated threatening life and commenced serving that sentence. However, this conviction was later overturned on appeal, and the appellant was released on bail pending a re-trial. Subsequently, the appellant pleaded guilty to the lesser charge of threatening life. The sentencing judge imposed a term of 19 months imprisonment with a non-parole period of 14 months, backdating the sentence by 14 months. The appellant had spent a total of 14 months and 22 days in custody throughout the proceedings, but was on bail at the time of sentencing for the threatening life offence. The appeal raised questions as to whether the backdating of the sentence was inappropriate, whether the sentence was manifestly excessive, and whether the sentencing judge erred in backdating the sentence by 14 months rather than the full period of 14 months and 22 days spent in custody.

The Full Court of the Supreme Court of South Australia dismissed the appeal. The Court held that section 30(2) of the *Criminal Law (Sentencing) Act 1988* (SA) authorised the sentencing judge to backdate the sentence even though the appellant was not in custody up to the date of sentencing. This provision was found to apply irrespective of whether the time spent in custody related to a more serious offence. The Court further reasoned that the sentencing judge was justified in concluding that a period of parole was appropriate and that this could only be achieved by backdating the sentence. Consequently, backdating the sentence to include time when the appellant was not in custody was considered appropriate in the circumstances. The Court also found that the sentence was not manifestly excessive and that the sentencing judge was not obliged to backdate the sentence to cover the precise number of days the appellant had spent in custody.

Orders