R v Wilson - [2018] SASCFC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILSON
[2018] SASCFC 13
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Justice Hinton)
22 February 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - SENTENCE: WHAT CONSTITUTES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
Appeal against sentence.
On 16 November 2016 the appellant was sentenced to three years, one month and two weeks imprisonment for a number of offences committed in 2014 and 2016. The Judge fixed a non-parole period of two years. He ordered that the sentence be suspended under s 33BB of the Criminal Law (Sentencing) Act 1988 and served on home detention on conditions including that the appellant not consume any drug not medically prescribed.
The appellant subsequently breached the conditions of the home detention order by taking methylamphetamine.
On 23 March 2017, the same sentencing Judge revoked the home detention order made on 16 November 2016 and ordered that the sentence of three years, one month and two weeks take effect.
On appeal, the appellant argued that the sentencing Judge did not afford the appellant credit for the time she spent in custody prior to being sentenced. The respondent conceded that the sentencing remarks do not indicate that any credit was afforded the appellant for time she had served in custody between 6 January 2016 and 16 November 2016. The respondent also conceded that no reason arose not to afford the appellant such credit. Because the order of 23 March 2017 carried into effect the sentence imposed on 16 November 2016, the order of 23 March 2017 was likewise infected by the error.
Held by the Court:
With respect to the sentence imposed on 16 November 2016:
1.      Appeal allowed.
2.      The sentence imposed on 16 November 2016 is varied by substituting for the period of imprisonment imposed and the non-parole period fixed a head sentence of two years and three months with a non-parole period of 16 months.
As to the order made on 23 March 2017:
1       Appeal allowed.
2       The order revoking the home detention order is varied for the purposes of ordering that the sentence of imprisonment to be carried into effect is a sentence of imprisonment for two years and three months with a non-parole period of 16 months and directing that the period of compliant home detention from 16 November 2016 to 11 January 2017 and the period from 31 January 2017 to 23 March 2017 are to be counted as part of the term of the sentence.
Criminal Law (Sentencing) Act 1988 (SA), referred to.
Frank v Police [2000] SASC 245; (2000) 77 SASR 273; R v Deng [2015] SASCFC 176, applied.

R v WILSON
[2018] SASCFC 13
Court of Criminal Appeal: Kourakis CJ, Parker and Hinton JJ
THE COURT:
Introduction

On 6 January 2016 the appellant was…

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 Wilson

Details

AGLC: R v Wilson [2018] SASCFC 13
Case: [2018] SASCFC 13
Decision Date: 22 February 2018

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, R, by the Supreme Court of South Australia. The dispute arose from the sentencing orders made on 16 November 2016 and the subsequent order made on 23 March 2017 revoking a home detention order. The matter was heard by Kourakis CJ, Parker and Hinton JJ.

The legal issues before the Full Court were whether the sentencing discretion had miscarried and, if so, what the appropriate sentence should be. The Court was required to determine the correct head sentence and non-parole period, and how periods of home detention should be accounted for in the final sentence.

The Court found that the sentencing discretion had miscarried and proceeded to re-sentence the appellant. The parties agreed that the period of time spent in custody prior to sentencing should be deducted from the sentence imposed. The Court varied the sentence imposed on 16 November 2016 by substituting a head sentence of two years and three months with a non-parole period of 16 months. The order revoking the home detention order was also varied to reflect this new sentence, with the periods of compliant home detention to be counted as part of the term of the sentence.

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

The sentencing discretion having miscarried, we proceed to re-sentence. The appellant and respondent agreed that the appropriate course for the Court to take was to deduct from the sentence imposed the period of time spent in custody prior to sentencing. We accede to that course.Conclusion For these reasons the Court orders:A.With respect to the sentence imposed on 16 November 2016:1 Appeal allowed.2 The sentence imposed on 16 November 2016 is varied by substituting for the period of imprisonment imposed and the non-parole period fixed a head sentence of two years and three months with a non-parole period of 16 months.B.As to the order made on 23 March 2017:1 Appeal allowed.2 The order revoking the home detention order is varied for the purposes of ordering that the sentence of imprisonment to be carried into effect is a sentence of imprisonment for two years and three months with a non-parole period of 16 months and directing that the period of compliant home detention from 16 November 2016 to 11 January 2017 and the period from 31 January 2017 to 23 March 2017 are to be counted as part of the term of the sentence.

Ratio Decidendi

Legal Principle Established

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