(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
24 November 2022
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 - APPEALS BY CROWN - EXERCISE OF DISCRETION
The Director of Public Prosecutions (SA) sought permission to appeal against sentence pursuant to s 157(1)(a)(iii) of the Criminal Procedure Act 1921 (SA). On 26 April 2022, the respondent was sentenced for the following offending which had occurred at his home in the early hours of the morning during a social gathering on 28 February 2021:
1.Causing Harm with Intent to Cause Harm, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty for a basic offence is imprisonment for 10 years; and
2.Assault, contrary to s 20(3) of the CLCA, for which the maximum penalty for a basic offence is imprisonment for two years.
The sentencing judge imposed one sentence for both offences. She commenced with a sentence of five months, which was reduced by 15 per cent on account of the respondent’s guilty pleas entered before the committal appearance. That resulted in a sentence for both offences of four months and eight days. That sentence was suspended upon the respondent entering into a bond to be of good behaviour for 18 months.
The Director did not contend that it was not open to suspend the sentence. Rather, it was submitted that the head sentence of four months and eight days was manifestly inadequate and fails to maintain appropriate sentencing standards for offending of this kind.
Held (Livesey P and David JA), permission to appeal refused.
1.The head sentence was manifestly inadequate, but it is not appropriate to grant the Director of Public Prosecutions permission to appeal.
2.An appeal against sentence by the Director of Public Prosecutions will only be granted in rare and exceptional cases. Allowing the sentence the subject of the appeal to stand would not undermine confidence in the administration of criminal justice.
Held (Doyle JA), granting the Director permission to appeal and allowing the appeal:
1.The sentence should be set aside, and the respondent resentenced.
[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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AGLC
R v Yaroslavceff [2022] SASCA 123
Case
[2022] SASCA 123
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions applied for permission to appeal against the sentence imposed on the respondent, Yaroslavceff, who had been convicted of causing harm with intent to cause harm and assault. The dispute concerned whether the sentence imposed by the sentencing judge was manifestly inadequate, thereby warranting appellate intervention. The application was heard by the Full Court of the Supreme Court of South Australia.
The legal issues before the Court were whether the sentence imposed was manifestly inadequate and, if so, whether the circumstances of the case were such that permission to appeal should be granted to allow for resentencing. Specifically, the Court had to consider the severity of the offences, the injuries sustained by the victim, the respondent's motivation, and any mitigating factors, in determining if the sentencing judge had erred in principle or imposed a sentence that was not just.
The Court acknowledged that the sentence imposed was manifestly inadequate, particularly given the serious nature of the offending, which involved significant violence and resulted in severe injuries to the victim. The Court considered that a notional starting point of approximately two years imprisonment would have been more appropriate to achieve the purposes of sentencing, including community protection and deterrence of alcohol-fuelled violence. However, despite this finding of inadequacy, the Court ultimately refused permission to appeal. The Court reasoned that while the disparity between the imposed sentence and the appropriate sentence was significant, the case did not present the rare and exceptional circumstances that would justify the Court's intervention to set aside the sentence and resentence the respondent.
Accordingly, permission to appeal was refused.
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
In the particular circumstances of this case, whilst the head sentence is substantially less than the head sentence that this Court regards as appropriate for offending by this offender, justice does not require that permission be granted, that the sentence be set aside and the respondent resentenced. This is not the kind of rare and exceptional case that warrants granting the prosecution permission to appeal sentence. Conclusion Accordingly, permission to appeal is refused. DOYLE JA: The facts and circumstances relevant to the resolution of this application by the Director of Public Prosecutions for permission to appeal against sentence are set out in the reasons of Livesey P and David JA. For the reasons they have given, I agree that the sentence imposed was manifestly inadequate. However, in my view, the disparity between the sentence imposed and the sentence which ought to have been imposed is such that the intervention of this Court is warranted so as to maintain appropriate sentencing standards.The offending The respondent was convicted of two offences: causing harm with intent to cause harm[33] (which carries a maximum penalty of 10 years imprisonment) and assault[34] (which carries a maximum penalty of two years imprisonment). For these two offences, the sentencing judge imposed a single penalty under s 26 of the Sentencing Act 2017 (SA), commencing with a notional starting point of five months imprisonment. As explained in the reasons of Livesey P and David JA, this was reduced to four months and eight days on account of the respondent’s guilty pleas, and was suspended upon the respondent entering into a bond to be of good behaviour for 18 months.[33] Contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).[34] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). The first of these offences was a serious instance of the offence of causing harm with intent to cause harm, having regard in particular to the degree of violence (five or six punches to the victim’s face), the significant injuries suffered by the victim (including comminuted fractures to the nasal bones and left eye socket and resulting hypoglobus, a blown pupil, facial bruising, a number of broken teeth, and fluid to the lungs) and the element of retribution in the respondent’s motivation for the offending. There were some circumstances that warranted a measure of leniency: the respondent’s earlier attempts to defuse the situation, the victim’s role in initiating the violence, the relatively spontaneous and initially (partially) defensive nature of the respondent’s violence, the respondent’s conduct after the violence ended in calling emergency services and making admissions, and the respondent’s personal circumstances. However, even having regard to these circumstances, a starting point significantly greater than the one imposed by the sentencing judge was required. I agree with Livesey P and David JA that in order to achieve the purposes of the sentencing exercise, including the need to protect the community from, and to deter, alcohol-fuelled violence, a starting point of about two years imprisonment would have been appropriate.