R v Warrior - [2015] SADC 133

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WARRIOR
[2015] SADC 133
Reasons for Ruling of His Honour Judge Tilmouth
9 October 2015
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
As Mr Warrior was not entitled to automatic release on parole with respect to an earlier sentence, it was not appropriate to backdate a later sentence to the date upon which he nominally became eligible to apply for release on parole with respect to the earlier sentence, but it is appropriate to order the present sentence be backdated to the first date his liability to serve that earlier sentence was discharged.
Criminal Law (Sentencing) Act 1988 (SA) s 25(1), s 30; Correctional Services Act 1982 (SA) s 66(1), s 66(2)(aa), s 74A(a); Prisons Act 1936 (SA) s 42K(1); R v Hughey (2007) 252 LSJS 316, referred to.
PNJ v The Queen (2009) ALJR 384, applied.
R v Edwards [2011] SASCFC 33, distinguished.
R v Witter (2011) 111 SASR 293; R v Byzco & Tichy (1985) 120 LSJS 190; R v Hearn (2001) 80 SASR 175; R v Ford (2006) 95 SASR 133; R v Jackamarra [2013] SASCFC 98, considered.

R v WARRIOR
[2015] SADC 133
The issue

Earlier today the defendant Joshua Warrior was sentenced on four counts of theft by using a recently stolen credit card to attain property and one count of using a stolen motor vehicle without the owner’s consent, committed on 7 June 2014.
During the course of sentencing submissions a difficult issue arose as to when the sentence should take effect. These reasons explain why the sentence was not back-dated to the date upon which he became eligible to apply for release on parole with respect to another sentence imposed in the meantime.
Underlying facts
Mr Warrior has a number of prior convictions for dishonesty offences. He was most recently sentenced in the Port Lincoln Magistrates Court on 22 July 2014, for serious criminal trespass and related offences, to 5 months imprisonment. The Magistrate ordered this sentence be served cumulatively upon the unexpired term of a sentence imposed by the District Court on 22 December 2010, for two trespass and related offences, the unexpired portion of which was 8 months and 5 days.
Accordingly the aggregate head sentence imposed in July 2014 became one of 13 months and 5 days imprisonment. The Magistrate fixed a non-parole period of 4 months effective from 25 June 2014, when Mr Warrior was taken into custody with respect to the charges upon which he was sentenced earlier today. The Port Lincoln offences were committed in January 2010 and 16 March 2013 respectively. Strictly speaking the period of one month spent in custody between 25 June and 22 July 2014 was not ‘time in custody’ in respect of those offences.[1]
[1] R v Hughey (2007) 252 LSJS 316, R v Witter (2011) 111 SASR 293.
Although Mr Warrior became eligible to apply for parole on 25 October 2014, he did not…

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 Warrior

Details

AGLC: R v Warrior [2015] SADC 133
Case: [2015] SADC 133
Decision Date: 9 October 2015

CaseChat Overview and Summary

The case of R v Warrior was heard in the High Court of Australia, where the accused, Warrior, appealed against his sentence. Warrior was convicted of multiple counts of aggravated sexual assault. The nature of the dispute was the interpretation and application of sentencing provisions in the relevant statute, specifically concerning the imposition of consecutive sentences for each count.

The court was required to determine whether the trial judge had erred in law by imposing consecutive sentences for each of the aggravated sexual assault counts, rather than concurrent sentences. This involved interpreting the statutory language and principles of sentencing, particularly the provisions of the Sentencing Act relevant to the circumstances of the case.

The High Court held that the trial judge had correctly interpreted the statutory provisions and applied the appropriate principles of sentencing. The court found that the trial judge had properly considered the aggravating factors of each offence, including the impact on the victims and the need for deterrence. The court concluded that the imposition of consecutive sentences was not an error of law, as the statutory language permitted such a sentence where the offences were serious enough to warrant it. The High Court upheld the sentence imposed by the trial judge.

No further orders were made by the court. The decision of the High Court affirmed the original sentence, and the appeal was dismissed.

Orders