Sims v The King

[2023] SASCA 21

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

SIMS v THE KING

[2023] SASCA 21

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

2 March 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against a sentence of four years for the offence of aggravated cause harm with intent, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty is 13 years’ imprisonment.

On 24 January 2023, the appellant was sentenced for striking the victim with a shovel, which made contact with the victim’s right forearm and right side of his head, causing a welt across the forearm, a swollen thumb and a headache.

The sentence of four years’ imprisonment was reduced by five per cent on account of the appellant’s late plea of guilty to three years, nine months and 19 days.  A non-parole period of two years was fixed.  The sentencing judge declined to suspend the sentence or order that it be served on home detention.

The appellant appealed on the basis that the sentencing judge breached the principle outlined by the High Court in The Queen v De Simoni (1981) 147 CLR 383, failed to follow the two-stage process for determining whether to make a home detention order and, in any event, imposed a sentence which was manifestly excessive.

Livesey P and Bleby JA held (allowing the appeal and re-sentencing the appellant): 

1.The sentence imposed by the sentencing judge was manifestly excessive, with the result that the sentence must be set aside and the appellant re-sentenced.  It was not necessary to address the asserted specific errors.

2.In this case three years was an appropriate starting point for the head sentence.  After a reduction for the guilty plea the sentence becomes two years, ten months and six days.  Having regard to the appellant’s favourable personal circumstances, a non-parole period of 20 months was appropriate.

3.After allowance for the time spent in custody of one month and six days the sentence will become two years and nine months, and the non-parole period will become one year, six months, three weeks and three days.  The sentence will commence from today, 2 March 2023.

4.The appellant’s favourable personal circumstances, active rehabilitation in the three years since his offending and the likely hardships associated with incarceration warrant the finding that there is good reason to suspend the sentence.

Held, per David JA (allowing the appeal and re-sentencing the appellant):

1.The sentence imposed was manifestly excessive and the sentence must be set aside and the appellant re-sentenced.

2.The appellant is sentenced to imprisonment for two years and nine months with a non-parole period fixed at one year, six months, three weeks and three days.  The sentence and the non-parole period are to commence from 2 March 2023.

3.Given the serious nature of the offending and the appellant’s prior convictions…