Symons v The King - [2023] SASCA 14

Supreme Court of South Australia
(Court of Appeal: Criminal)
SYMONS v THE KING
[2023] SASCA 14
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
15 February 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant appeals against the sentence for the offences of:
(1) One count of supplying a controlled drug to another person (heroin).
(2) Four counts of failing to comply with a bail agreement.

The appellant was sentenced to a head sentence of one year and 19 days in connection with the offence of supplying a controlled drug with a non-parole period of six months.
A conviction without further penalty was recorded for each count of failing to comply with a bail agreement.
The sentencing Judge declined to suspend the sentence or order that it be served on home detention.
The Court held (granting permission to appeal and allowing the appeal):
1. The sentence of the District Court is set aside.
2. The appellant is re-sentenced to four months, four days imprisonment which will be suspended upon entry into a $100 bond to be of good behaviour for 12 months, with conditions.

Sentencing Act 2017 (SA) s 40; Controlled Substances Act 1984 (SA) s 33I; Bail Act 1985 (SA) s 17, referred to.
Cocks v The Queen [2022] SASCA 21; R v Hoffman [2017] SASCFC 15, considered.

SYMONS v THE KING
[2023] SASCA 14
Court of Appeal – Criminal: Livesey P and David JA
THE COURT (ex tempore):

This is an application for permission to appeal against sentence.
Following guilty pleas, the appellant, Jade Danielle Symons, was convicted and sentenced for the offences of:
·One count of supplying a controlled drug to another person (heroin) for which the maximum penalty is a $50,000 fine or imprisonment for 10 years or both.[1]
[1] Controlled Substances Act 1984 (SA), s 33I(1)(a)(ii).
·Four counts of failing to comply with a bail agreement for which the maximum penalty is two years imprisonment or a fine of $10,000 or both.[2]
[2] Bail Act 1985 (SA), s 17(1).
By reason of her pleas, the appellant qualified for a maximum reduction of 15 per cent for the offence of supplying a controlled drug,[3] and up to 30 per cent for each offence of failing to comply with a bail agreement.
[3] The parties before this Court agreed that the maximum available reduction was 15 per cent.
In relation to the offence of supplying a controlled drug, the sentencing Judge adopted a starting point of 14 months’ imprisonment, which was reduced by 10 per cent for her guilty plea, resulting in a head sentence of one year and 19 days. A non-parole period of six months was fixed.
The sentencing Judge declined to suspend the sentence or order that it be served on home detention.
A conviction without further penalty was recorded for each of the four…

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.

Continue reading Symons v The King

Details

AGLC: Symons v The King [2023] SASCA 14
Case: [2023] SASCA 14
Decision Date: 15 February 2023

CaseChat Overview and Summary

Symons appealed against a sentence imposed by the District Court of New South Wales. The appellant had pleaded guilty to a charge of aggravated break and enter dwelling with intent to commit an indictable offence. The District Court judge sentenced Symons to a term of imprisonment of three years, with a non-parole period of eighteen months. The appeal concerned whether this sentence was manifestly excessive.

The primary legal issue before the Court of Appeal was whether the sentencing judge erred in the exercise of their discretion by imposing a sentence that was demonstrably too severe, having regard to the objective circumstances of the offence and the subjective circumstances of the offender. The court was required to consider the principles of sentencing, including the need for punishment, deterrence, rehabilitation, and denunciation of criminal conduct, and to determine if the balance struck by the sentencing judge was unreasonable.

The Court of Appeal applied the established principles for reviewing sentences on appeal, which require interference only where the sentence is found to be "manifestly excessive" or "unreasonable". The court considered the gravity of the offence, the appellant's criminal history, and the mitigating factors presented. After a thorough review of the evidence and submissions, the Court of Appeal concluded that the sentence imposed by the District Court was not manifestly excessive and that the sentencing judge had not erred in the exercise of their discretion.

The appeal was dismissed.

Orders