(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)
2 February 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
On 22 April 2022, following guilty pleas, the appellant was convicted and sentenced for a series of offences involving his former domestic partner which occurred between 12 October 2019 and 30 June 2020. A suspended sentence was also revoked.
The individual sentences for each offence were ordered to be served cumulatively except in respect of two offences (Counts 3 and 4), for which a single penalty was imposed pursuant to s 26 of the Sentencing Act 2017 (SA).
When revoking the suspended sentence, the sentencing Judge ordered the appellant to serve an incorrect sentence of 19 months and 24 days as a result of a typographical error recorded on part of the suspended sentence bond. The correct sentence was in fact 16 months and 13 days. The incorrect revoked suspended sentence was ordered to be served cumulatively upon the sentences for the other offences. That resulted in a nominal head sentence of four years, nine months and 28 days imprisonment, which was reduced on account of time served in custody to two years, five months and three days imprisonment. A non-parole period of one year, 11 months and nine days was fixed, which equates to approximately 80 per cent of the head sentence.
The sentencing Judge found that there was not good reason to suspend the sentence (either wholly or partially) and declined to make a home detention order.
The appellant now appeals against the sentence on the following grounds:
• The sentence and non-parole period imposed was manifestly excessive (Grounds 1 and 2);
•The sentencing Judge erred by not ordering partial concurrency of the individual terms of imprisonment (Ground 3);
•The sentencing Judge erred by not ordering wholly concurrent sentences for those offences committed on 24 October 2019 (Counts 3 and 4) and 2 November 2019 (Counts 10, 11, 12) (Ground 4); and
•The sentencing Judge erred by revoking the suspended sentence bond on the basis that it was invalid and unenforceable (Ground 5).
Held, per the Court, granting permission to appeal on Grounds 1, 2 and 5, and allowing the appeal on Ground 2:
1. The sentence of the District Court of South Australia is set aside.
2.While the head sentence is at the higher end of the permissible range, it is not manifestly excessive.
3. There was no process error by the sentencing Judge in not ordering that the individual sentences be served wholly or partially concurrently.
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
AGLC
Trott-Dan v The King [2023] SASCA 2
Case
[2023] SASCA 2
Decision Date
CaseChat Overview and Summary
The appeal concerned the sentencing of the appellant, Trott-Dan, by the District Court of South Australia. The appellant had pleaded guilty to a range of offences, including aggravated assault, and was sentenced to a term of imprisonment. The appeal was brought against this sentence.
The central legal issues before the Court of Criminal Appeal were whether the sentence imposed was manifestly excessive, and whether the sentencing judge erred in ordering that the sentence be served cumulatively upon a previously suspended sentence. Specifically, the court had to consider the principles governing the imposition of cumulative sentences, particularly in circumstances where a prior suspended sentence was activated upon breach of its conditions.
The Court of Criminal Appeal found that the sentencing judge had erred in ordering the new sentence to be served cumulatively. The court reasoned that the sentencing judge had failed to adequately consider the impact of activating the previously suspended sentence, effectively resulting in a disproportionate total period of imprisonment. The court applied the principle that when a suspended sentence is activated, it should generally be considered alongside any new sentence, rather than automatically adding to it, to avoid an unjust accumulation of punishment.
Consequently, the Court of Criminal Appeal allowed the appeal, quashed the original sentence, and resentenced the appellant to a term of imprisonment to be served concurrently with the activated suspended sentence.