Tammaro v The King - [2022] SASCA 103

Supreme Court of South Australia
(Court of Appeal: Criminal)
TAMMARO v THE KING
[2022] SASCA 103
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice David and the Honourable Auxiliary Justice Mazza)
5 October 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - STALKING - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
On 13 July 2022, the applicant was sentenced for the offences of unlawful stalking (Count 1) and aggravated assault causing harm (Count 2).
For Count 1, the sentencing Judge commenced with a starting point of imprisonment for 12 months, reduced by five per cent on account of his guilty plea to 11 months and 13 days. For Count 2, the sentencing Judge commenced with a starting point of two years imprisonment, reduced by 10 per cent on account of his guilty plea to one year, nine months, and 19 days. The sentences were ordered to be served cumulatively.
The sentencing Judge calculated the accumulated head sentence as two years, six months, and 22 days imprisonment. In fact, the sentence was two years, nine months, and two days imprisonment. Two months and seven days was deducted on account of time spent in custody and on home detention bail, which was calculated as resulting in a head sentence of two years, four months, and 15 days. In fact, it resulted in a head sentence of two years, six months, and 26 days imprisonment. A non-parole period of 15 months was fixed.
The applicant applies for permission to appeal against his sentence on the singular ground that the sentence should have been ordered to be served on home detention.
Held, per the Court, rectifying the sentence and refusing permission to appeal:
1.Pursuant to s 20 of the Sentencing Act 2017 (SA) and s 5(1) of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA), the technical error of the sentencing Judge in calculating the sentence is rectified; a head sentence of two years, six months, and 26 days imprisonment with a non-parole period of 15 months is imposed. The sentence is to commence from 13 July 2022.

2. Permission to appeal against sentence is refused.
Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) s 5; Sentencing Act 2017 (SA) ss 20, 71, referred to.
Liddicoat v The Queen [2021] SASCA 18; R v Dell (2016) 126 SASR 571; R v Hunt [2018] SASCFC 137; R v Singh (2018) 132 SASR 1; The Queen v Bechara [2022] SASCA 37; The Queen v Perrey [2022] SASCA 51, considered.

TAMMARO v THE KING
[2022] SASCA 103
Court of Appeal – Criminal: David JA and Mazza AJA

THE COURT: On 13 July 2022, the applicant was sentenced for the following offences: unlawful stalking, for which the…

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 Tammaro v The King

Details

AGLC: Tammaro v The King [2022] SASCA 103
Case: [2022] SASCA 103
Decision Date: 5 October 2022

CaseChat Overview and Summary

The applicant, Tammaro, appealed against a sentence imposed by a sentencing judge. The respondent was The King. The appeal concerned the sentencing judge's decision not to order that the applicant's custodial sentence be served on home detention.

The central legal issue before the court was whether the sentencing judge erred in her determination that the applicant was not a suitable person to serve his sentence on home detention, and consequently, whether the decision to decline a home detention order was unreasonable or plainly unjust. The court was required to consider the two-stage process for making a home detention order under section 71 of the Sentencing Act, including the suitability of the defendant and the broader considerations of whether to make such an order.

The court reasoned that the sentencing judge correctly applied the two-stage process. In the first stage, her Honour considered the suitability of the applicant for home detention. This involved taking into account matters specified in section 71(3) of the Sentencing Act, including the potential impact on victims, the defendant's partner, and any person residing at the proposed home detention address. The sentencing judge specifically considered the concerns raised by the Department for Correctional Services regarding the impact of a home detention order on the applicant's current partner and her child. The applicant's submission that there was no basis for these concerns was rejected by the court. The court also noted that section 71(2) of the Sentencing Act sets out circumstances prohibiting a home detention order, such as if it would affect public confidence in the administration of justice.

The court dismissed the appeal, finding no error in the sentencing judge's approach and concluding that the decision to decline a home detention order was neither unreasonable nor plainly unjust.

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

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Ratio Decidendi

Legal Principle Established

For the respondent it is submitted that no error has been demonstrated in the approach taken by the sentencing Judge. Nor can it be said that the decision to decline to order that the sentence be served on home detention was unreasonable or plainly unjust.Consideration In submitting to the sentencing Judge that any sentence of imprisonment should be served on home detention, the applicant put forward two proposed home detention addresses: the first an address in Seaton where his current partner and her young child lived; and the second the address of his family business in Woodville North where he planned to reside in a caravan. The latter address was also that stipulated in the residential condition of his bail agreement. The court may make a home detention order pursuant to s 71 of the Sentencing Act if it has imposed a sentence of imprisonment, it considers that the sentence should not be suspended, and it considers that the defendant is a suitable person to serve the sentence on home detention. The question of whether to order that a sentence be served on home detention involves a two stage process of consideration.[4] The first stage involves an inquiry as to the suitability of the defendant to serve a sentence on home detention. If the court is satisfied that the defendant is a suitable person to do so, the second stage involves a broader consideration as to whether the court orders that the defendant serve the sentence on home detention. [4] Liddicoat v The Queen [2021] SASCA 18 at [34] per Bleby JA (with whom Kelly P and Lovell JA agreed); R v Dell (2016) 126 SASR 571 at [45]–[48] per Doyle J (with whom Kelly and Parker JJ agreed). In undertaking this two staged process, the court is required to take into account those matters referred to in s 71(3) of the Sentencing Act, including the impact a home detention order is likely to have on any victim of the offence for which the defendant is being sentenced, any spouse or domestic partner of the defendant, and any person residing at the residence at which the prisoner would, if released, be required to reside. Subsections 71(2)(a) through (d) of the Sentencing Act set out various matters prohibiting the court from making a home detention order in identified circumstances, which includes ‘if the court considers that the making of such an order would, or may, affect public confidence in the administration of justice’.[5][5] Sentencing Act 2017 (SA) s 71(2)(a). In this case, the sentencing Judge determined that the applicant was not a suitable person to serve his sentence on home detention. In reaching that conclusion, her Honour had regard to the following matters. First, the impact that a home detention order would have on the applicant’s current partner and her child, noting that the Department for Correctional Services had raised such concerns. The applicant complains that there was no basis for the sentencing Judge to consider that a home detention order would have an impact on his partner and her child. We do not agree.