Size v The King

Case [2024] SASCA 122


SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

SIZE v THE KING

[2024] SASCA 122

Judgment of the Court of Appeal  (ex tempore)

(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.

Criminal Law Consolidation Act 1935 (SA) ss 134, 137 and 270A; Criminal Procedure Act 1921 (SA) s 157; Sentencing Act 2017 (SA) s 96, referred to.
Arnold v Samuels (1972) 3 SASR 585; Bugmy v The Queen (2013) 249 CLR 571; Elliott v Harris (No 2) (1976) 13 SASR 516; Hackett v The Queen [2021] SASCA 32; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; Lee v Western Australia [2022] WASCA 137; Markarian v The Queen (2005) 228 CLR 357; Millwood v The King [2024] SASCA 84; Rankin (A Pseudonym) v The…

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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.

Ratio Decidendi

Legal Principle Established

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