(The Honourable President Livesey and the Honourable Justice Stein)
16 October 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant sought permission to appeal against sentence on the basis that the sentence was manifestly excessive because the sentencing judge refused to suspend the sentence.
The appellant pleaded guilty to theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and was convicted following a trial by judge alone of attempted aggravated robbery contrary to ss 137(1) and 270A of the CLCA. He was sentenced to a head sentence of three years and three months’ imprisonment, and a non-parole period of one year and four months was fixed.
The appellant submitted that the sentencing judge erred in failing to find good reason to suspend the sentence due to:
1.the appellant’s youth;
2.the appellant’s lack of prior offending;
3.the appellant’s drug addiction as a product of social disadvantage; and
4.the nature and gravity of the offending.
HELD (the Court) granting an extension of time to file the appeal and permission to appeal but dismissing the appeal:
1.It is necessary to do more than demonstrate that it was open to the sentencing judge to suspend the sentence of imprisonment, and that other judges would have suspended the sentence in the circumstances of this case.
2.Indeed, it is not sufficient for this Court to conclude that it may have come to a different decision, or even that a different decision may have been preferable.
3.It was proper for the sentencing judge to consider the seriousness of the offending, which was brazen and involved some planning and a knife with vulnerable victims (however brief and inept it may have been), as well as the appellant’s uncertain rehabilitation prospects.
4.Whilst it is reasonably arguable that the refusal to suspend involved an error in the exercise of the broad sentencing discretion reposed in the sentencing judge, the appeal should be dismissed. It was open to the sentencing judge to proceed as she did.
[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
Size v The King [2024] SASCA 122
Case
[2024] SASCA 122
Decision Date
CaseChat Overview and Summary
The appeal concerned a sentencing decision made by a sentencing judge. The appellant, Size, sought to appeal against the sentence imposed by the sentencing judge.
The primary legal issue before the Court of Appeal was whether the sentencing judge erred in the exercise of her broad sentencing discretion by refusing to suspend the sentence imposed on the appellant.
The Court of Appeal acknowledged that it was reasonably arguable that the refusal to suspend the sentence involved an error in the exercise of discretion. However, the Court ultimately concluded that it was open to the sentencing judge to proceed as she did, and therefore, the appeal should be dismissed.
The Court granted the application for an extension of time and the application for permission to appeal, but dismissed the appeal itself.
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 all of these circumstances, whilst it is reasonably arguable that the refusal to suspend involved an error in the exercise of the broad sentencing discretion reposed in the sentencing judge, the appeal should be dismissed. It was open to the sentencing judge to proceed as she did.Conclusion The application for an extension of time and the application for permission to appeal should be granted, but the appeal dismissed.