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 73Court 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…
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- R v Tilley [2010] SASCFC 73
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- [2010] SASCFC 73
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CaseChat Overview and Summary
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.
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