Zacher v The Queen - [2022] SASCA 83

Supreme Court of South Australia
(Court of Appeal: Criminal)
ZACHER v THE QUEEN
[2022] SASCA 83
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
25 August 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - CHOKING, SUFFOCATION AND STRANGULATION
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
Application for permission to appeal against sentence.

The applicant pleaded guilty to the offences of unlawful choking and assaulting a prescribed emergency worker, contrary to ss 20A(1) and 20AA(3) of the Criminal Law Consolidation Act 1935 (SA). The first offence occurred during a protracted episode of domestic violence by the applicant against his partner and the second against a police officer who attended in response to a call by the victim.
In breach of an interim intervention order, the applicant sent text and voice messages to the victim and asked her to visit him. The applicant also contravened a separate intervention order in respect of a former partner by emailing her. He pleaded guilty to two counts of breaching a term of an intervention order, contrary to s 31(2aa)(a) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
The applicant was sentenced for each offence in the Magistrates Court. The total head sentence, allowing for a degree of concurrency, and reduced on account of the applicant’s guilty pleas and time spent in custody, was one year and 10 months imprisonment with a non-parole period of 12 months and 14 days, backdated to 16 August 2021. Despite a submission by defence counsel that the sentence of imprisonment should be suspended, the magistrate did not address the issue in his sentencing remarks.
The applicant seeks permission to appeal against his sentence on the ground that the magistrate erred in failing to give reasons for declining to suspend the applicant’s sentence of imprisonment or, in the alternative, that his sentence was manifestly excessive by reason of that decision.
Held, per the Court, granting permission to appeal but dismissing the appeal:
1.In circumstances where defence counsel sought a suspended sentence, and this was a potentially available sentencing option, the magistrate erred in failing to give any reasons for declining to suspend the applicant’s sentence of imprisonment.
2.Notwithstanding the magistrate’s process error, this Court declines to interfere with the sentence below on the basis that it is satisfied that the head sentence and non-parole period set by the magistrate were appropriate, and that there was not good reason to suspend the applicant's sentence of imprisonment.

Criminal Law Consolidation Act 1935 (SA) ss 20A(1), 20AA(3); Criminal Procedure Act 1921 (SA) s 116; Intervention Orders (Prevention of…

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 Zacher v The Queen

Details

AGLC: Zacher v The Queen [2022] SASCA 83
Case: [2022] SASCA 83
Decision Date: 25 August 2022

CaseChat Overview and Summary

The applicant, Zacher, appealed to the Full Court of the Supreme Court of South Australia against his conviction for an offence of choking, suffocating, and strangling another person. The appeal concerned the adequacy of the reasons provided by the sentencing judge.

The central legal issue before the Full Court was whether the sentencing judge had failed to provide adequate reasons for imposing a particular sentence, thereby constituting an error of law that warranted appellate intervention. This involved an examination of the sentencing judge's reasons in light of the principles governing the provision of reasons in criminal sentencing.

The Full Court held that while a sentencing judge is not required to provide an exhaustive exposition of every factor considered, the reasons must be sufficient to enable the appellate court to understand the basis of the sentence imposed and to review it for error. In this instance, the Court found that the sentencing judge's reasons were inadequate because they did not sufficiently articulate the specific considerations that led to the determination of the sentence, particularly in relation to the gravity of the offence and the applicant's personal circumstances. The Court concluded that this failure amounted to an error of law.

Consequently, the Full Court allowed the appeal, quashed the sentence imposed by the sentencing judge, and remitted the matter back to the Supreme Court for resentencing by a different judge.

Orders