Woodhart v The Queen - [2022] SASCA 9

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)
WOODHART v THE QUEEN
[2022] SASCA 9
Judgment of the Court of Appeal

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)
24 February 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
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
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
The applicant and his co-accused were found guilty following a trial by jury of one count of aggravated causing serious harm with intent to cause serious harm, contrary to s 23(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) and one count of aggravated causing harm with intent to cause harm, contrary to s 24(1)(b) of the CLCA. The offending involved two victims.
On 23 January 2017 the applicant was sentenced by a Judge of the District Court to 14 years imprisonment. After allowance for time spent in custody and on home detention bail, the sentence was reduced to 13 years and eight months, with a non-parole period of eight years and eight months.
The applicant sought permission to appeal on the sole ground that the sentence was manifestly excessive. The applicant contended that the starting points identified by the sentencing Judge were manifestly excessive, and that the sentences for counts 1 and 2 should have been wholly concurrent as they arose out of the same set of circumstances. The applicant required an extension of time to appeal of approximately five years.
Held, (the Court) refusing permission to appeal:
1.It is not reasonably arguable that the sentencing Judge erred in declining to order complete concurrency.

2. It is not reasonably arguable that the sentence was manifestly excessive.
3.As the application for permission to appeal is without merit, it is unnecessary to rule on the extension of time.

4. The application for permission to appeal is refused.
Criminal Law Consolidation Act 1935 (SA) ss 23, 24; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Gikas v Police (1999) 202 LSJS 301; R v Fyfe [2004] SASC 391, considered.

WOODHART v THE QUEEN
[2022] SASCA 9
Court of Appeal – Criminal: Livesey P, Doyle and Bleby JJA

THE COURT: This is an application for permission to appeal against sentence.
The applicant requires an extension of time of approximately five years.
In 2017, following a trial by jury, the applicant was convicted and sentenced for:
·one count of aggravated causing serious harm with intent to cause serious harm, contrary to s 23(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA); and
·one count of aggravated causing harm with intent to cause harm, contrary to s 24(1)(b) of the CLCA.
The maximum penalties for these offences were, respectively, imprisonment for 25 years and…

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

Case: [2022] SASCA 9
Decision Date: 24 February 2022

CaseChat Overview and Summary

The applicant, Woodhart, appealed to the Full Court of the Supreme Court of South Australia against a sentence imposed by the District Court. Woodhart and a co-accused were convicted by a jury of aggravated causing serious harm with intent to cause serious harm and aggravated causing harm with intent to cause harm, both offences under the *Criminal Law Consolidation Act 1935* (SA), involving two victims. The sentencing judge imposed a head sentence of 14 years imprisonment, reduced to 13 years and eight months after accounting for time already served, with a non-parole period of eight years and eight months.

The central legal issues before the Full Court were whether the sentencing judge erred in principle by setting a manifestly excessive starting point for the sentence, and whether the sentences for the two counts should have been ordered to run concurrently, given they arose from the same incident. The applicant also sought an extension of time to bring his appeal, which was significantly out of time.

The Full Court reasoned that it was not reasonably arguable that the sentencing judge had erred in declining to order the sentences to be served concurrently, nor was it reasonably arguable that the overall sentence was manifestly excessive. Consequently, as the application for permission to appeal lacked merit, the Court found it unnecessary to determine the application for an extension of time. The application for permission to appeal was therefore refused.

Orders

Orders of the court

Held, (the Court) refusing permission to appeal:

1. It is not reasonably arguable that the sentencing Judge erred in declining to order complete concurrency.

2. It is not reasonably arguable that the sentence was manifestly excessive.

3. As the application for permission to appeal is without merit, it is unnecessary to rule on the extension of time.

4. The application for permission to appeal is refused.

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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