ASHTON v POLICE - [2008] SASC 174

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ASHTON v POLICE
[2008] SASC 174
Judgment of The Honourable Justice David
2 July 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - IRRELEVANT FACTORS
Appellant pleaded guilty to numerous offences committed on different days - before sentencing appellant was recommended for, and participated in, the Drug Court Intervention Program - appellant secured accommodation and employment, attended counselling, improved support networks, complied with bail and did not re-offend - appellant returned negative drug test results for first six months and middle two months of the latter six months - magistrate imposed sentence of five years and six months imprisonment and declined to suspend the sentence - whether magistrate erred in not further adjourning sentencing pursuant to s 19B of the Criminal Law (Sentencing) Act 1988 (SA) - no error can be shown - whether magistrate erred in exercising his discretion to suspend the period of imprisonment imposed by placing undue emphasis on appellant's relapse into drug use towards the end of the program and by not giving sufficient consideration to the appellant's rehabilitation - application of s 10 (5) and (6) of the Act - magistrate failed to apply s 10(6) of the Act - when considering afresh whether there is good reason to suspend the sentence pursuant to s 38(1) of the Act, likelihood of re-offending and need for protection of the public outweighs appellant's successes in the program though they are taken into account pursuant to s 10(5) of the Act.
Held: Sentence of magistrate upheld, appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134, s 169, s 170; Criminal Law (Sentencing) Act 1988 (SA) s 10(5), s 10(6), s 18A, s 19B, s 38(1); Statutes Amendment (Intervention Programs and Procedures) Act 2005 (SA), referred to.
Crockford v Adelaide Magistrates Court & Anor [2008] SASC 62; Dinsdale v The Queen (2000) 202 CLR 321; Elliott v Harris (No 2) (1976) 13 SASR 516; Marschall (2002) 129 A Crim R 381; R v Regan [2003] SASC 287, considered.

ASHTON v POLICE
[2008] SASC 174
Magistrates Appeal
DAVID J.
Introduction

This is an appeal against a sentence imposed by a magistrate. The appellant pleaded guilty to numerous offences committed on different days over a time span of approximately eighteen months. The magistrate imposed a head sentence of five years and six months imprisonment with a non‑parole period of eighteen months. Although the appellant was a participant in the Drug Court Intervention Program (“the Program”) from 21 February 2007 until sentencing on 5 March 2008 and made notable achievements in the Program, the magistrate declined to suspend the sentence.
The appellant argues that the magistrate erred in his decision not to suspend the sentence, by placing undue emphasis on his relapse into methylamphetamine use towards the end of his…

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 ASHTON v POLICE

Details

AGLC: ASHTON v POLICE [2008] SASC 174
Case: [2008] SASC 174
Decision Date: 2 July 2008

CaseChat Overview and Summary

The appellant, represented by counsel, appealed against his sentence, arguing that the magistrate erred in not further adjourning sentencing pursuant to s 19B of the Criminal Law (Sentencing) Act 1988 (SA) and in not suspending the sentence imposed by placing undue emphasis on his relapse into drug use towards the end of his participation in the Drug Court Intervention Program. The appeal was heard by the South Australian Court of Appeal, the Honourable Justices Gray, Bleby and Kourakis. The court considered whether the magistrate erred in not further adjourning sentencing or in not suspending the sentence imposed. The court considered the arguments of the appellant and the submissions of the respondent, the Director of Public Prosecutions, represented by counsel.

The court found that there was no error in the magistrate’s decision not to further adjourn sentencing or in not suspending the sentence imposed. The court held that the magistrate was required to consider whether there was “good reason” to suspend the sentence, pursuant to s 38(1) of the Act. The court held that, in light of the appellant’s extensive prior criminal history, the nature of his offending and the likelihood of him re-offending, there was no good reason to suspend the sentence, notwithstanding the appellant’s successes in the Drug Court Intervention Program. The court held that the magistrate was required to apply s 10(6) of the Act, which required him to consider the need for protection of the public and the need for punishment and deterrence. The court held that the magistrate failed to apply s 10(6) of the Act in a meaningful way and did not give sufficient consideration to the appellant’s rehabilitation.

The court dismissed the appeal. The court held that, in light of the appellant’s extensive prior criminal history, the nature of his offending and the likelihood of him re-offending, there was no good reason to suspend the sentence, notwithstanding the appellant’s successes in the Drug Court Intervention Program. The court held that the magistrate failed to apply s 10(6) of the Act in a meaningful way and did not give sufficient consideration to the appellant’s rehabilitation. The court held that the sentence of five years and six months imprisonment with a non‑parole period of eighteen months was appropriate and did not need to be varied.

The court dismissed the appeal and affirmed the sentence of five years and six months imprisonment with a non-parole period of eighteen months.

Orders

Orders of the court

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Background

Background to the litigation

The appellant argues that the magistrate erred in his decision not to suspend the sentence, by placing undue emphasis on his relapse into methylamphetamine use towards the end of his participation in the Program and by not giving sufficient consideration to his rehabilitation. The appellant also argues that the magistrate erred in not adjourning sentencing for a further period.Background The appellant pleaded guilty to thirty-one charges, laid on both Information and Complaint, for offences committed between 13 December 2004 and 25 June 2006. These offences comprised:·eleven offences of non‑aggravated serious criminal trespass, three of which were residential;·twelve offences of theft;·two offences of damaging property;·one offence of possessing implements for housebreaking;·three offences of breaching bail;·one offence of driving whilst unlicensed; and·one offence of creating undue noise and smoke. The appellant has an extensive criminal history, which is set out in his antecedent report.[1] He has previously been subject to fourteen sentences of immediate imprisonment and four suspended sentences of imprisonment. Of the sentences of immediate imprisonment imposed, five were for theft‑related offences, five were for driving whilst disqualified, three were for breaches of either bail or intensive supervision orders and one was for reckless driving.[1] Antecedent Report, 22 October 2007. The maximum penalty for an offence of non‑aggravated serious criminal trespass in a residential place is imprisonment for fifteen years.[2] If the offence is committed in a non‑residential building the maximum penalty is imprisonment for ten years.[3] The maximum penalty for theft is also imprisonment for ten years.[4][2] Criminal Law Consolidation Act 1935 (SA) s 169(1).[3] Criminal Law Consolidation Act 1935 (SA) s 170(1).[4] Criminal Law Consolidation Act 1935 (SA) s 134(1). The magistrate recorded convictions in relation to each count and passed a single head sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”), of five years and six months imprisonment with a non‑parole period of eighteen months for the charges laid on Information, and a concurrent sentence of six months imprisonment for the charges laid on Complaint. There is no appeal against the severity of the sentence or the methodology used in respect to its severity. It is therefore not necessary to go into any more detail about each offence except to say that none of them involved any form of violence, the three trespass offences committed in residential places were committed while none of the residential occupants were present inside their homes and the greatest value of property stolen by the appellant was $3,000. The offending was, nevertheless, very serious in its repetitive and persistent nature. The appellant was in custody between October to December 2005 and July 2006 to February 2007. Having been recommended for the Program, he commenced on 21 February 2007. His bail conditions eased as he progressed through the Program. He began the Program on home detention bail with electronic monitoring, moved subsequently to a curfew and in the latter stages of the Program was simply required to remain in a set place of residence.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J

Bearing in mind the nature of the offending, the appellant’s significant prior criminal history and the likelihood of him re-offending, despite not doing so whilst on the Program, there does not appear to be “good reason” to suspend the sentence hoping that the appellant will rehabilitate himself. Even allowing for those positive aspects of his involvement in the Program, and taking those into account pursuant to s 10(5) of the Act, the considerations going to whether the sentence should be suspended are outweighed by the likelihood of the appellant re‑offending and the need for the protection of the community.Conclusion I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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