Soun v The Queen; R v Soun - [2021] SASCA 119

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SOUN v THE QUEEN; R v SOUN
[2021] SASCA 119
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
20 October 2021
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
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - CIRCUMSTANCES OF AGGRAVATION
The applicant was sentenced to a head sentence of four years, six months and four days with a non-parole period of two years and eight months for one count of aggravated robbery, contrary to ss 137 and 5AA of the Criminal Law Consolidation Act 1935 (SA). The applicant stole a handbag from a 90-year-old woman who was using a walking frame. The robbery involved violence sufficient to put the victim in hospital after she fell.
The applicant seeks permission to appeal the sentence out of time on the ground that it is manifestly excessive and there were other errors made. The DPP cross appeals on the ground that the sentence is manifestly inadequate.
Held (per the Court), refusing permission to appeal and dismissing the appeal:
1.No issue of principle is raised by the proposed appeal.
2.It cannot be said that the starting point of just under five years was manifestly excessive or manifestly inadequate, or that any of the suggested errors is arguable.
3.There is no utility in granting an extension of time.

Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108; R v Betts [2011] SASCFC 27; R v Brant [2018] SASCFC 72; R v Gannon (2012) 113 SASR 1; R v Gauci [2017] SASCFC 166; R v Harradine & Harradine [2012] SASCFC 103; R v Hevko [2018] SASCFC 22; R v Hosking (2017) 128 SASR 37; R v Place (2002) 81 SASR 395; R v Sumner; R v Fitzgerald (2013) 117 SASR 271; R v Williams [2006] SASC 237; Rendic v The Queen [2021] SASCA 23, considered.

SOUN v THE QUEEN; R v SOUN
[2021] SASCA 119
Court of Appeal - Criminal: Livesey P and David JA
THE COURT
Introduction

The applicant commenced this appeal seeking permission to appeal against sentence on the sole ground that the sentence is manifestly excessive.
On 7 July 2021, the sentencing Judge imposed a sentence of four years, six months and 11 days, and fixed a non-parole period of two years and eight months for the charge of aggravated robbery, contrary to ss 137 and 5AA of the Criminal Law Consolidation Act 1935 (SA), the maximum penalty for which is life imprisonment. The aggravating feature is that the offence was committed knowing that the victim was over 60 years of age.
The appeal is out of time and an extension is required.
By amended grounds filed on 14 October 2021, after this hearing…

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.

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Details

Case: [2021] SASCA 119
Decision Date: 20 October 2021

CaseChat Overview and Summary

The applicants, Soun and R, sought to appeal against their sentences imposed by the Supreme Court of Queensland. The nature of the underlying offences involved property offences, specifically robbery with circumstances of aggravation.

The central legal issue before the Court of Appeal was whether the sentences imposed were manifestly excessive or inadequate, thereby providing grounds for interference. The applicants also sought an extension of time to pursue their appeals.

The Court of Appeal determined that no issue of principle was raised by the proposed appeals. It found that the starting point for the sentences, which was just under five years imprisonment, could not be characterised as manifestly excessive or inadequate. Consequently, the Court concluded that none of the suggested errors in sentencing were arguable and that there was no utility in granting an extension of time. Accordingly, permission to appeal was refused, and the appeal was dismissed. The cross-appeal was withdrawn.

Orders

Orders of the court

Held (per the Court), refusing permission to appeal and dismissing the appeal:

1. No issue of principle is raised by the proposed appeal.

2. It cannot be said that the starting point of just under five years was manifestly excessive or manifestly inadequate, or that any of the suggested errors is arguable.

3. There is no utility in granting an extension of time.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Permission to appeal this ground is refused.Conclusion No issue of principle is raised by this proposed appeal. There is no utility in granting an extension of time. Permission to appeal is refused. The appeal is dismissed. The cross appeal is withdrawn.

Ratio Decidendi

Legal Principle Established

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