Weetra v The Queen - [2021] SASCA 19

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
WEETRA v THE QUEEN
[2021] SASCA 19
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
26 March 2021

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 - SENTENCES ON TWO OR MORE COUNTS - OFFENCES ARISING OUT OF SAME TRANSACTION OR COURSE OF CONDUCT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - TRESPASS TO LAND
Application for permission to appeal against sentence.
The applicant pleaded guilty to six offences committed over the course of three incidents during the early hours of the morning of 1 October 2019, including aggravated robbery, theft and aggravated serious criminal trespass. He was entitled to percentage reductions of 30 per cent for his guilty pleas. The sentencing judge grouped the counts by offence type for the purposes of sentencing and made each group cumulative, imposing a total head sentence of four years, two months and 18 days imprisonment, including reductions for the time the applicant had been remanded in custody. A non-parole period of 18 months was fixed.
The applicant’s Notice of Appeal complained that the sentence was manifestly excessive, and complained of the sentencing judge’s approach in that by grouping the offences in the manner that he did, by type of offence rather than by incident, and making the notional sentence for each group cumulative, the judge failed to apply correctly the principles of concurrency and accumulation that are designed to ensure proportionality.
Held, per Bleby JA (Kelly P and Doyle JA agreeing), granting permission to appeal on Grounds 1 and 2, refusing permission to appeal on Ground 3 and dismissing the appeal:
1. It is not necessary to determine whether the problematic aspects of the structure of the sentence constitute error. This is not a case where a different sentence should be imposed.
Criminal Law Consolidation Act 1935 (SA) ss 5AA(1)(h), 134(1), 137(1), 169(1); Sentencing Act 2017 (SA) s 26; Criminal Procedure Act 1921 (SA) s 158(7)(a), referred to.
R v Dorning (1981) 27 SASR 481; Giordimania v The Queen [2020] SASCFC 28; Attorney-General v Tichy (1982) 30 SASR 84; R v Copeland (No 2) (2010) 108 SASR 398; R v W, PL [2017] SASCFC 119; R v Reiner (1974) 8 SASR 102; KMC v DPP (SA) (2020) 267 CLR 480; Kentwell v The Queen (2014) 252 CLR 601; R v Kreutzer (2013) 118 SASR 211, considered.

WEETRA v THE QUEEN
[2021] SASCA 19

Court of Appeal – Criminal: Kelly P, Doyle and Bleby JJA

KELLY P: I agree with the reasons of Bleby JA, and with the orders he has proposed.
DOYLE…

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 Weetra v The Queen

Details

AGLC: Weetra v The Queen [2021] SASCA 19
Case: [2021] SASCA 19
Decision Date: 26 March 2021

CaseChat Overview and Summary

The appellant, Weetra, appealed against a sentence imposed by the District Court. The appeal concerned the sentencing for multiple offences, including property offences such as theft, robbery, and trespass to land.

The primary legal issue before the Full Court of the Supreme Court of South Australia was whether the sentence imposed by the District Court was manifestly excessive or inadequate, and whether the structure of the sentence constituted an error.

The Court, per Bleby JA (with Kelly P and Doyle JA agreeing), granted permission to appeal on two grounds but refused permission on a third. Ultimately, the appeal was dismissed. The Court found it unnecessary to determine whether the structural aspects of the sentence were erroneous, concluding that it was not a case where a different sentence should be imposed.

Orders

Orders of the court

Held, per Bleby JA (Kelly P and Doyle JA agreeing), granting permission to appeal on Grounds 1 and 2, refusing permission to appeal on Ground 3 and dismissing the appeal:

1. It is not necessary to determine whether the problematic aspects of the structure of the sentence constitute error. This is not a case where a different sentence should be imposed.

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

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