ARORA v Police - [2008] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ARORA v POLICE
[2008] SASC 2
Judgment of The Honourable Justice David
18 January 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE
Appeal against sentence - breach of bail and threatening to cause harm - sentenced to 11 months imprisonment, partially suspended - whether magistrate erred in imposing a sentence of imprisonment - whether magistrate erred in failing to fully suspend the sentence.
Held: Appeal allowed - error in failing to fully suspend the sentence.
Criminal Law Consolidation Act 1935 (SA) s 19(2); Bail Act 1985 (SA) s 11, s 17; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 18A, s 38(1), referred to.
House v King (1936) 55 CLR 499; White v Police [2007] SASC 428, applied.
Police v Petropoulos (1993) 168 LSJS 421; Van Roosmalen (1989) 43 A Crim R 358, discussed.

ARORA v POLICE
[2008] SASC 2
Magistrates Appeal
DAVID J.
Introduction

The appellant was charged with the offences of threatening to cause harm (contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA)) committed on 12 June 2004, and two counts of breaching a bail agreement (contrary to s 17 of the Bail Act 1985 (SA)) committed on 12 June 2004 and 16 June 2004 respectively. The appellant pleaded guilty in the Magistrates Court to all three charges. On 9 October 2007 a magistrate sentenced him to 11 months imprisonment, commencing forthwith. He was to be released from custody after serving two months, upon entering into a good behaviour bond for the remaining nine months of the sentence. The appellant appeals against that sentence on the basis that it is manifestly excessive.
Background
The three June 2004 offences, which are the subject of this appeal, were pre-dated by a number of offences committed on 26 April 2004, including false imprisonment, assault, aggravated serious criminal trespass and blackmail. The appellant also pleaded guilty to those charges and was sentenced in the District Court on 27 April 2007.
After being arrested for the offences committed on 26 April 2004, the appellant was granted bail. It was a condition of his bail agreement that he remain at his home address between the hours of 7.00 pm and 7.00 am each day. It was also a condition of his bail agreement that he not approach, intimidate, harass, communicate, or make contact with the victim by any means whatsoever.
On 12 June 2004, the victim’s girlfriend was at a nightclub in the city. At around 2.00 am she saw the appellant in the nightclub. She was aware of the charges that had been laid against the appellant, was fearful of him and immediately left the nightclub. The appellant…

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 ARORA v Police

Details

AGLC: ARORA v Police [2008] SASC 2
Case: [2008] SASC 2
Decision Date: 18 January 2008

CaseChat Overview and Summary

The appellant, who was convicted of threatening to cause harm and two counts of breaching bail, appeals against the sentence imposed by the magistrate. The magistrate sentenced the appellant to 11 months imprisonment, commencing forthwith, with a partial suspension of the sentence after two months. The appellant contends that the sentence is manifestly excessive and that the magistrate erred in failing to fully suspend the sentence.

The central legal issues in this appeal are whether the magistrate erred in imposing a sentence of imprisonment and whether the magistrate erred in failing to fully suspend the sentence. The appeal raises questions about the appropriate approach to sentencing for offences of this kind, and the extent to which the principle of totality should be applied.

In allowing the appeal, the court noted that the magistrate had taken into account the principle of totality in imposing a single sentence of 11 months imprisonment for the three June 2004 offences. However, the court found that the magistrate had erred in failing to fully suspend the sentence. The court considered the personal circumstances of the appellant relevant to sentencing for both sets of offences, and found that it would be incongruous for the appellant to receive a suspended sentence for the serious offences of false imprisonment, assault, aggravated serious criminal trespass and blackmail, but to be required to serve a term of imprisonment for breaching bail and threatening to cause harm. The court also noted that the decision of the sentencing judge in the District Court to fully suspend the sentence of imprisonment for the offences committed on 26 April 2004 supported the imposition of a suspended sentence for the June 2004 offences.

The court set aside the sentence imposed by the magistrate and sentenced the appellant to 11 months imprisonment, commencing forthwith. The sentence will be suspended upon the appellant entering into a bond, to be of good behaviour for 12 months.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was charged with the offences of threatening to cause harm (contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA)) committed on 12 June 2004, and two counts of breaching a bail agreement (contrary to s 17 of the Bail Act 1985 (SA)) committed on 12 June 2004 and 16 June 2004 respectively. The appellant pleaded guilty in the Magistrates Court to all three charges. On 9 October 2007 a magistrate sentenced him to 11 months imprisonment, commencing forthwith. He was to be released from custody after serving two months, upon entering into a good behaviour bond for the remaining nine months of the sentence. The appellant appeals against that sentence on the basis that it is manifestly excessive.Background The three June 2004 offences, which are the subject of this appeal, were pre-dated by a number of offences committed on 26 April 2004, including false imprisonment, assault, aggravated serious criminal trespass and blackmail. The appellant also pleaded guilty to those charges and was sentenced in the District Court on 27 April 2007. After being arrested for the offences committed on 26 April 2004, the appellant was granted bail. It was a condition of his bail agreement that he remain at his home address between the hours of 7.00 pm and 7.00 am each day. It was also a condition of his bail agreement that he not approach, intimidate, harass, communicate, or make contact with the victim by any means whatsoever. On 12 June 2004, the victim’s girlfriend was at a nightclub in the city. At around 2.00 am she saw the appellant in the nightclub. She was aware of the charges that had been laid against the appellant, was fearful of him and immediately left the nightclub. The appellant followed her and said “we’ll get you one day”. The appellant was subsequently charged with threatening to cause harm, and breach of bail for failing to comply with his curfew condition. On 16 June 2004, the victim of the offences committed on 26 April 2004 was in a restaurant in the city. He heard a voice, which he recognised as the voice of the appellant. He turned around and saw the appellant approaching him. The appellant had his hand outstretched, indicating that he wished to shake the victim’s hand. The appellant was subsequently charged with breach of bail, for failing to comply with the condition that he not approach the victim. As already indicated, the appellant pleaded guilty in the Magistrates Court to the offences committed in June 2004. He was sentenced on 9 October 2007. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), and having regard to the principle of totality, the magistrate imposed a single sentence of 11 months imprisonment. He declined to suspend the whole of the custodial sentence, instead ordering that the appellant be released after serving two months in custody, on the condition that he enter into a bond to be of good behaviour for the remaining nine months. In sentencing, the magistrate explained that the starting point in regard to the offence of threatening to cause harm was imprisonment for a period 12 months, which was then reduced to 10 months to make allowance for the appellant’s plea of guilty. Similarly, with respect to each charge of breaching a bail agreement, the starting point for sentencing was imprisonment for three months, which was then reduced to two and a half months after making allowances for the appellant’s pleas of guilty.Imprisonment

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J

This outcome is supported by the decision of the sentencing judge in the District Court to fully suspend the sentence of imprisonment for the offences committed on 26 April 2004. It would be somewhat incongruous for the appellant to receive a suspended sentence for the serious offences of false imprisonment, assault, aggravated serious criminal trespass and blackmail, but to be required to serve a term of imprisonment for breaching bail and threatening to cause harm, particularly when the personal circumstances of the appellant relevant to sentencing for both sets of offences are almost identical.Conclusion The appeal is allowed. The sentence imposed by the magistrate is set aside. The appellant is sentenced to 11 months imprisonment, commencing forthwith. The sentence will be suspended upon the appellant entering into a bond, to be of good behaviour for 12 months.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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