SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WHEELER
[2015] SASCFC 83
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Stanley)
11 June 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCING
Application for permission to appeal against sentence.
The applicant was found guilty of manslaughter after trial by jury. He had been charged with murder. The jury acquitted him of murder but found him guilty of the alternative charge of manslaughter. The sentencing judge imposed a head sentence of 15 years. The applicant further admitted a breach of bond. The judge revoked a suspended sentence of imprisonment of 10 months which she ordered should be served cumulatively. Accordingly, the judge imposed a head sentence of 15 years and 10 months imprisonment. Pursuant to s 32(5)(ba) of the Criminal Law (Sentencing) Act 1988 (SA) (the Act), by reason of the head sentence for manslaughter, the mandatory non-parole period was 12 years.
Whether the sentence is manifestly excessive.
Whether the sentencing judge made process errors in acting on mistaken findings of fact or in failing to take account of material considerations.
Held per Stanley J (Gray and Peek JJ agreeing) refusing permission to appeal:
1. No error has been demonstrated in the findings of fact relied on by the judge in sentencing (at [25]).
2. The judge’s reasons were adequate to explain the basis upon which she found the facts upon which she imposed sentence. Ground 2 dismissed (at [27]).
3. While the head sentence imposed was at the high end of the wide permissible range for sentencing for this offence, it was not manifestly excessive (at [35]).
4. As the appeal against the non-parole period is predicated on the proposition that the non-parole period is manifestly excessive because the head sentence is manifestly excessive, the application to appeal against the non-parole period must fail. Ground 1 dismissed (at [44]).
5. Permission to appeal refused. Notice of appeal dismissed (at [46]).
Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(ba), s 32A(2)(b), referred to.
R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; DW v The Queen (2004) 150 A Crim R 139; The Queen v Morse (1979) 23 SASR 98; Markarian v The Queen (2005) 228 CLR 357; R v Hansen (2011) 206 A Crim R 54; Yardley v Betts (1979) 22 SASR 108; R v McLachlan [2004] SASC 277; R v Lavender (2005) 222 CLR 67; R v Weinman (1987) 49 SASR 248; R v Goulding [2007] SASC 60; R v Franklin (2012) 114 SASR…
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- AGLC
- R v Wheeler [2015] SASCFC 83
- Case
- [2015] SASCFC 83
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the sentencing judge erred in her findings of fact, particularly regarding the applicant's motivation for his actions, his alleged fear of the deceased, and the circumstances surrounding the infliction of the fatal wound. The applicant contended that the sentencing judge should have found he was not motivated by jealousy, that his actions were driven by concern for another's marriage, and that he was acting in self-defence due to a prior assault and an ongoing attack.
The Court of Appeal rejected the applicant's arguments, finding that the factual basis upon which they were predicated had been rejected by the sentencing judge, and that these rejections were open on the evidence. The court affirmed the sentencing judge's findings that the applicant was angry and exhibited murderous intent, with his anger likely stemming from jealousy. The judge's rejection of the applicant's claims of fear and self-defence, and her finding that the fatal wound was not inflicted during an assault, were also upheld as being amply justified by the evidence. The court concluded that no error had been demonstrated in the sentencing judge's factual findings.
Given the findings that the offence was a serious example of manslaughter and that specific and general deterrence required a significant head sentence, the court found the head sentence to be appropriate. Furthermore, the court held that the mandatory non-parole period of four-fifths, as fixed by s 32(5)(ba) of the relevant Act, was correctly applied and no reason was established to depart from it. Consequently, the court refused permission to appeal and dismissed the notice of appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: PEEK J
The respondent submits that the applicant’s arguments on the second ground of appeal are misconceived. The factual basis upon which the applicant’s argument is predicated was rejected by the sentencing judge. The facts found by the judge were open on the evidence. No error has been demonstrated. Given the findings the head sentence was appropriate. This was a serious example of the offence and matters of specific and general deterrence required a significant head sentence. The length of the non-parole period was fixed by s 32(5)(ba) of the Act. No reason was established to depart from the four-fifths mandatory non-parole period. Consideration It is convenient to address ground 2 first. The applicant submits that the judge should have sentenced on the basis that he was not jealous of the deceased. Accordingly, the circumstances of the offending were not influenced by any feelings of jealousy he felt for the deceased. The applicant submits that his actions were motivated by concern about the Gallaghers’ marriage. He punctured the car tyre to prevent Mr Gallagher going to the deceased’s house. Further, the applicant submits that the judge should have found that he had been assaulted by Mr Gallagher with an iron bar some weeks previously. He had been hospitalised as a result and advised that he was vulnerable to further injury if struck again in the head. Accordingly, he armed himself for his own protection. Finally, he submits that the judge should have found that he was brandishing the knife on the verandah while being attacked by Mr Gallagher who was hitting the back of his head. The applicant’s submission is predicated upon a factual basis that the sentencing judge did not accept. The judge heard the evidence. It is plain from the sentencing remarks that she rejected the applicant’s account that he was not jealous of the deceased and her conduct at the hotel that night. On the contrary, she found he was angry when he left the hotel. She found his anger did not abate while he waited for Mr Gallagher’s return at the house. This finding was amply justified on the evidence of the threats made during the telephone calls. It was open to the judge to find, as she did, that the applicant exhibited a murderous intent towards Mr Gallagher. The evidence gave rise to an inference that his anger towards Mr Gallagher was related to his jealousy. The evidence is that his anger was apparent even after the fatal injury had been inflicted on the deceased. This evidence was relevant in permitting an inference to be drawn as to the applicant’s state of mind at the time the fatal wound was inflicted. The judge expressly rejected the applicant’s claim that he was frightened of Mr Gallagher or acting in self-defence notwithstanding anything he said to that effect in telephone calls to the police. She further rejected the applicant’s claim that Mr Gallagher was on the verandah assaulting him when the fatal wound was inflicted. As the judge observed, there was no evidence of the applicant having suffered any head injury. In any event, there were grounds to doubt the veracity of his allegation that he had been assaulted previously by Mr Gallagher with an iron bar. No error has been demonstrated in the findings of fact relied on by the judge in sentencing.