Adamson v Police - [2008] SASC 92

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
ADAMSON v POLICE
[2008] SASC 92
Judgment of The Honourable Justice Layton (ex tempore)
7 April 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
Appeal against sentence – appellant pleaded guilty to three counts of possession of petrol for purpose of inhalation and one court of carrying an offensive weapon – offence of carry an offensive weapon had maximum penalty of $2,500 or 6 months imprisonment – offence of possession of petrol for purpose of inhalation carried a maximum fine of $100 – Magistrate imposed single sentence of imprisonment of 3 months, implicitly utilising s 18A Criminal Law (Sentencing) Act 1988 – whether Magistrate erred in applying a global sentence of imprisonment to an offence to which a period of imprisonment cannot apply – sentence suspended upon appellant entering into a good behaviour bond with conditions – whether sentence was manifestly excessive.
Held: Appeal allowed - Magistrate erred in including offence of possession of petrol for purpose of inhalation as part of global sentence of imprisonment – appellant sentenced afresh – appellant convicted in relation to each offence – in relation to offence of carrying an offensive weapon, appellant to enter into bond to be of good behaviour for a period of 9 months with conditions – appellant discharged without penalty in relation to offences of possession of petrol for purpose of inhalation.
Criminal Law (Sentencing) Act 1988 s 18A; Magistrates Court Act 1991 (SA) s 42; Pitjantjatjara Land Rights Act (Control of Petrol) By-laws 1987 By-laws 3 and 6(1); Summary Offences Act 1953 (SA) s 15(1)(a), referred to.
Hermel v Police (2000) 76 SASR 336, applied.
Police v Russell Adamson (Remarks on Penalty of Magistrate R McInnes, delivered at Ernabella, 16 January 2008), considered.

ADAMSON v POLICE
[2008] SASC 92
Magistrates Appeal: Criminal
LAYTON J:
Introduction

This is an appeal against sentence pursuant to s 42 of the Magistrates Court Act1991 (SA).
On 27 November 2007, the appellant was charged with one count of carrying an offensive weapon and one count of possession of petrol for the purposes of inhalation.
On 16 January 2008, the appellant entered a plea of guilty to each of the two offences. The appellant also pleaded guilty to two counts of possession of petrol for the purposes of inhalation which had been committed on two earlier occasions, namely 28 and 29 December 2006.
The appellant was sentenced to three months imprisonment suspended on an $11 good behaviour bond for a period of 12 months, with conditions. The appellant appealed against this sentence.
Grounds of Appeal
The grounds of appeal were twofold:
·first, that the sentence was manifestly excessive; and,
·secondly, that the learned Magistrate erred in attaching a sentence of imprisonment to the offence of “possession of petrol…

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 Adamson v Police

Details

AGLC: Adamson v Police [2008] SASC 92
Case: [2008] SASC 92
Decision Date: 7 April 2008

CaseChat Overview and Summary

In the case of Adamson v Police, the appellant, Mr Adamson, sought an extension of time for his appeal against the sentence imposed by the Magistrate. The Magistrate had sentenced Mr Adamson to a three-month imprisonment, suspended upon the condition that Mr Adamson enter into a good behaviour bond with certain conditions. Mr Adamson pleaded guilty to three counts of possession of petrol for the purpose of inhalation and one count of carrying an offensive weapon. The maximum penalty for carrying an offensive weapon was either a $2,500 fine or six months imprisonment, whereas the maximum penalty for possession of petrol for the purpose of inhalation was a $100 fine. The central issue before the court was whether the Magistrate erred in imposing a global sentence of imprisonment that included an offence for which imprisonment could not apply.

The court held that the Magistrate had indeed erred in imposing a global sentence of imprisonment that included the offence of possession of petrol for the purpose of inhalation, which did not carry a penalty of imprisonment. The appeal was allowed, and Mr Adamson was re-sentenced. He was convicted in relation to each offence. For the offence of carrying an offensive weapon, Mr Adamson was to enter into a bond to be of good behaviour for a period of nine months, commencing from the date it was entered. For the offences of possession of petrol for the purpose of inhalation, Mr Adamson was discharged without penalty.

The court's reasoning was based on the differing penalties for the offences committed by Mr Adamson. The court found that the Magistrate's imposition of a global sentence of imprisonment, which included the offence of possession of petrol for the purpose of inhalation, was an error. The court concluded that a bond with conditions was the appropriate sentence for the offence of carrying an offensive weapon and that convictions should be recorded for the offences of possession of petrol for the purpose of inhalation, but Mr Adamson should be discharged without penalty for those offences. The final orders of the court included an extension of time for the appellant's appeal, the allowance of the appeal, the setting aside of the sentence imposed by the Magistrate, and the imposition of a new sentence in its place.

Orders

Orders of the court

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Background

Background to the litigation

The order of the Magistrate was made on 16 January 2008 but the notice of appeal was received on 12 February 2008. As a consequence, the appellant seeks an extension of time on the basis that the delay is not the fault of the appellant, the respondent is not prejudiced by the delay and there is merit in the substantive appeal. The respondent indicated that it did not oppose the appellant being granted an extension of time.Background The two offences of possessing petrol for the purposes of inhalation occurred, as I indicated earlier, on 28 and 29 December 2006. The third count of possessing petrol for the purpose of inhalation and the one count of carrying an offensive weapon occurred on 27 November 2007. On 27 November 2007, police officers had been patrolling the Ernabella community in the APY Lands when they noticed the appellant by the road. The appellant beckoned the officers and one of the officers got out of the car. After approaching the appellant the officer smelt petrol on the appellant’s breath and noticed that his eyes were wide and glazed. After that, a second officer got out of the car and the appellant then walked away towards his house. One of the officers asked the appellant whether there was any more petrol in the house. The appellant in response shut the door, thereby preventing the officers from entering. The officers instructed the appellant to open the door. The appellant then approached the officers with an iron bar held aloft in a threatening manner whilst shouting incoherently. The appellant eventually complied with the officers’ instructions and put down the bar. The officers subsequently entered the house to search for petrol. The appellant picked up a plastic container containing petrol, which was sitting by the sink, and continued shouting at the police. Thereafter he put the container to his face and proceeded to sniff from it. He was subsequently arrested.The Sentencing Process The appellant pleaded guilty to all offences and, as indicated, the Magistrate imposed a sentence of three months imprisonment suspended on an $11 good behaviour bond, with certain conditions. Section 15(1)(a) of the Summary Offences Act 1953 (SA) provides that the offence of carrying an offensive weapon without lawful excuse has a maximum penalty of $2,500 or imprisonment for six months. On the other hand, the offence of possession of petrol for the purpose of inhalation is an offence contrary to by-law 3 and by-law 6(1) of the Pitjantjatjara Land Rights Act (Control of Petrol) By‑Laws 1987, which is punishable by a maximum fine of $100. Before sentencing the appellant, the learned Magistrate made the following remarks:[1]I have discussed the proposed penalty with Mr Burton, a community elder from Amata present in the courtroom, a well as with the prosecution and defence. As I understand it, the community supports the proposed penalty, which is set up in a way that is likely to work at dealing with the defendant’s petrol sniffing one way or another. Either he takes steps to keep away from petrol when he is in the community, or he will have his access to petrol restricted because he will be in gaol.[1] Police v Russell Adamson (Remarks on Penalty of Magistrate R. McInnes, delivered at Ernabella, 16 January 2008), [1].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Hill further deposed that the appellant was aware of the damaging effect of petrol sniffing to his health and was willing to take steps to try and stop using petrol. This required rehabilitation. Mr Hill submitted before me that the new rehabilitation centre operating at Amata had, since this matter was before the Magistrate, taken the appellant in as its first outpatient. In addition, he further informed me that the service may be able to operate out of Ernabella but, even if that is not the case, the appellant would be able to travel only a relatively short distance to Amata for services.Conclusion In view of all of the circumstances, and particularly having regard to the submissions of Mr Hill, which I accept, the offending does not warrant a suspended sentence of imprisonment in respect of the offence of carrying an offensive weapon. This offending was linked to the possession of petrol for the purpose of inhalation. I consider that the appropriate sentence, in all of the circumstances in relation to the offence, should be the imposition of a bond with conditions. As the appellant has already had a bond imposed for a three-month period since the sentence was imposed, a nine-month bond with conditions would be appropriate. This bond is to commence from the time when it is entered into, which I understand will be next week when the court convenes at Ernabella. In my view the sentence would also accord with the views expressed by the community as reflected in the Magistrate’s remarks and attached report. The imposition of such a condition of bond will give the appellant an opportunity to rehabilitate himself. Moreover, I consider that the bond conditions should be similar to those imposed by the Magistrate. In relation to the offences of possession of petrol for the purpose of inhalation, I consider that convictions should be recorded but that the appellant should be discharged, without penalty, in respect of each offence.Orders Therefore, for the reasons given above, I make the following orders:1That the time within which the appellant be entitled to appeal be extended to 12 February 2008.2That the appeal is allowed.3That the sentence imposed by the Magistrate be set aside and the following sentence be imposed in lieu thereof.4That the appellant be convicted in relation to each offence and that, in relation to the offence of carrying an offensive weapon, he enter into a bond to be of good behaviour for a period of nine months, such period to commence from the date upon which it is entered, but to be no later than Friday, 18 April 2008.The conditions of the bond are that:(a) He be under the supervision of the Department for Correctional Services and comply with all reasonable directions to attend appointments, projects and programs, such appointments, projects and programs to be at the discretion of the supervising correctional officer.(b) That he comply with any treatment regimes recommended by the Positive Behaviour Support Unit in Alice Springs operating out of either Amata or Ernabella as part of its outreach program.(c) If so directed to comply with any treatment programs recommended by the health service running the detoxification clinic in Amata as part of the outreach program in Ernabella.5That, with regard to the offence of possession of petrol for the purposes of inhalation, the appellant be discharged without penalty.

Ratio Decidendi

Legal Principle Established

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