COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL DOYLE CJ(1), MILLHOUSE(2) AND PERRY(3) JJ
CWDS Criminal law - jurisdiction, practice and procedure - judgment and punishment - sentence - discretion to suspend - trial judge's remarks suggested that he adopted a process of comparison with another case, rather than directly considering the question - discretion miscarried - new non-parole period - sentence not to be suspended. Criminal Law (Sentencing)Act 1988s38, referred to. Varzokas v Zanker (1989) 51 SASR 277; R v Creed (1985) 37 SASR 566, applied. Miller v Huffa (1980) 24 SASR 595; Heatlie v SA Police (1993) 172 LSJS 94; Dadleh v SA Police ((1996) 66 SASR 352); R v Warner (1989) 149 LSJS 165; R v Traino (1987) 45 SASR 473 considered. R v Matthew (1995) 184 LSJS 63, discussed.
HRNG ADELAIDE, 21 March 1996 #DATE 16:5:1996 #ADD 4:7:1996
Counsel for appellant: Mr R Kourakis
Solicitors for appellant: Guy Harley
Counsel for respondent: Mr S McEwen
Solicitors for respondent: DPP (SA)
ORDER Publication of reasons for decision.
JUDGE1 DOYLE CJ This is an appeal against a sentence imposed by a District Court Judge. The complaint upon appeal was that the sentencing Judge should have suspended the sentence of imprisonment which he imposed.
2. At the hearing of the appeal all members of the Court considered that there was an error in the approach of the sentencing judge, and that the appeal should be allowed. The other members of the Court were of the opinion that the head sentence and non-parole period should stand, but that the sentence should be suspended upon the appellant entering into a bond in the sum of $1,000 to be of good behaviour for a period of one year. An order was made accordingly. I was of the opinion that the head sentence should stand, but that a shorter non-parole period should be fixed than the one fixed by the sentencing judge, but that there should be no order suspending the sentence.
3. What follows are my reasons for so concluding.
4. The appellant was convicted on his plea of guilty of two counts of perjury. The offences arose out of a motor car accident in which the appellant was involved. An action was brought by the driver of the other vehicle to recover from the appellant the cost of repairs to her vehicle. In the course of that action in the Magistrates Court the appellant, as he acknowledged by his plea of guilty, deliberately gave false evidence that he did not know the identity of the driver of a motor car which was ahead of his car immediately prior to the accident. The sentencing Judge found that this false evidence led the Magistrate to give judgment in favour of the appellant. The sentencing Judge remarked that one could not be surprised that the other driver involved in the accident, the plaintiff in the action in the Magistrates Court, felt…
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.
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Details
AGLC
R v Wacyk [1996] SASC 5622
Case
[1996] SASC 5622
Decision Date
CaseChat Overview and Summary
This is an appeal against a sentence imposed by a District Court Judge. The appellant was convicted on his plea of guilty of two counts of perjury. The appeal was allowed and the sentence was varied. The Court found that the sentencing judge's approach was erroneous in that he compared the present case to a previous case rather than considering the question of suspension directly. The Court considered the appropriate sentence and found that the head sentence was correct, but that a shorter non-parole period should be fixed. The Court also found that the sentence should not be suspended, as the offence was serious and the appellant's age and circumstances did not warrant suspension. The Court ordered that the appellant should serve a term of imprisonment for one year and nine months with a non-parole period of one month. The Court also ordered that the appellant should make restitution to the insurer which suffered loss because of the perjury.