Thrupp v The King - [2022] SASCA 97

Supreme Court of South Australia
(Court of Appeal: Criminal)
THRUPP v THE KING
[2022] SASCA 97
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Auxiliary Justice Buss)
12 September 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Following a trial before a jury, the appellant was found guilty of manslaughter. On 11 February 2022, the sentencing judge sentenced the appellant to a term of imprisonment of nine years and fixed a non-parole period of seven years, two months and 13 days.
The appellant appeals against his sentence on the sole ground that the sentence was manifestly excessive.
Held (the Court) granting permission to appeal but dismissing the appeal:
1. The sentence was not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 13; Sentencing Act 2017 (SA) s 47, referred to.
Barbaro v The Queen (2014) 253 CLR 58; Cheung v The Queen (2001) 209 CLR 1; Dinsdale v The Queen (2000) 202 CLR 321; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Markarian v The Queen (2006) 228 CLR 357; R v Dawes [2004] NSWCCA 363; R v Forbes (2005) 160 A Crim R 1; R v Lavender (2005) 222 CLR 67; R v Piotrowski (1990) 156 LSJS 254; R v Wheeler [2015] SASCFC 83, considered.

THRUPP v THE KING
[2022] SASCA 97
Court of Appeal – Criminal: Livesey P, Doyle JA and Buss AJA
THE COURT (ex tempore):
Introduction

This is an application for permission to appeal against sentence imposed for manslaughter by unlawful and dangerous act, for which the maximum penalty was imprisonment for life; see s 13 of the Criminal Law Consolidation Act 1935 (SA).
The appellant had been charged with the murder of Mr Steven Hinrichsen, along with two co-accused. Following a trial before a jury, the jury found the two co-accused guilty of murder but acquitted the appellant of murder and found him instead guilty of manslaughter.
The sentencing judge sentenced the appellant to a term of imprisonment for nine years and her Honour fixed a non-parole period of seven years, two months and 13 days.[1] The head sentence was backdated to commence on 15 December 2018, when the appellant was taken into custody.
[1] Because the offending was a “serious offence against a person” s 47 required that her Honour fix a non-parole period of at least four-fifths of the head sentence: see particularly s 47(5)(d) of the Sentencing Act 2017 (SA).
The sole proposed ground of appeal is that the sentence was manifestly excessive. For the reasons that follow, permission to appeal should be granted but the appeal dismissed.
The circumstances of the offending
One of the co-accused, Ms Tanya Hinrichsen, had been married…

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 Thrupp v The King

Details

AGLC: Thrupp v The King [2022] SASCA 97
Case: [2022] SASCA 97
Decision Date: 12 September 2022

CaseChat Overview and Summary

The applicant, Thrupp, appealed against a sentence imposed by the Supreme Court of Queensland. The nature of the offending and the vulnerability of the victim were central to the dispute.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the trial court was manifestly excessive, thereby providing grounds for interference on appeal.

The Court of Appeal considered the gravity of the offending, the victim's vulnerability, and the need for both specific and general deterrence. Applying these considerations, the Court concluded that the sentence was not manifestly excessive. Accordingly, permission to appeal was granted, but the appeal itself was dismissed.

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

Given the nature of the offending, the vulnerable position of the victim and the importance of both specific and general deterrence in this case, it cannot be said that the sentence which was imposed is manifestly excessive.Conclusion In all of these circumstances, permission to appeal should be granted but the appeal dismissed.

Ratio Decidendi

Legal Principle Established

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