BAGNARA v Police - [2022] SASC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
BAGNARA v POLICE
[2022] SASC 62
Judgment of the Honourable Justice Kimber
27 June 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
This is an appeal against a sentence imposed in the Magistrates Court of South Australia for 12 counts of Dishonestly Taking Property (Theft) contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and one count of Attempted Dishonestly Taking Property (Attempted Theft) contrary to ss 134 and 270A of the CLCA.
The Learned Magistrate imposed a single sentence of nine months and 16 days utilising s 26 of the Sentencing Act 2017 (SA). That sentence was fashioned in the following way. The Learned Magistrate started with a head sentence of 18 months, which was reduced by 30 percent on account of the appellant’s guilty pleas to one year and 19 days. The Learned Magistrate further reduced the sentence by three months and three days for time spent in custody, arriving at the sentence of nine months and 16 days. The Learned Magistrate ordered the appellant serve five months imprisonment, with the balance to be suspended upon the appellant’s release from gaol on entering into a good behaviour bond for a period of two years, with other conditions.
The appellant appeals against sentence on the basis the Learned Magistrate erred in: failing to suspend the whole term of imprisonment (ground 1); failing to back date the sentence for the time already spent in custody (ground 2); imposing a partially suspended sentence in which the period of time to be served before the balance was suspended was manifestly excessive (ground 3); imposing a manifestly excessive sentence (ground 4); failing to provide adequate sentencing remarks (ground 5); sentencing the appellant for an offence he was not charged with (ground 6); and failing to give appropriate credit for an early guilty plea (ground 7).
The respondent appropriately conceded ground 6 and 7 are made out.
Held, per Kimber J, allowing the appeal:
1. The Magistrate erred in sentencing for a Theft when the relevant offence was an Attempted Theft which had a lesser maximum penalty.
2. The Magistrate erred in sentencing on the basis the appellant was entitled to a reduction of up to 30 percent for his pleas of guilty for all offences when for some offences the appellant was entitled to a reduction of up to 40 percent.
3. The appellant is re-sentenced to a single sentence of 10 months, with six months and 12 days of that sentence to be served in prison, and the remaining three months and 18 days suspended on a bond to be of good behaviour with other conditions.

Criminal Law Consolidation Act 1935 (SA) ss 134, 270A; Sentencing Act 2017 (SA) ss…

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 BAGNARA v Police

Details

AGLC: BAGNARA v Police [2022] SASC 62
Case: [2022] SASC 62
Decision Date: 27 June 2022

CaseChat Overview and Summary

The matter of BAGNARA v Police involved an appeal against a sentence imposed by a magistrate in South Australia. The appellant, BAGNARA, was convicted of multiple counts of theft and one count of attempted theft, all involving credit card fraud. The respondent conceded that grounds 6 and 7 of the appeal were valid, necessitating the allowance of the appeal, the setting aside of the sentence, and the re-sentencing of the appellant. The primary legal issues addressed were whether the sentence imposed was appropriate and if there were any procedural errors in the sentencing process.

The court examined the nature of the offending, which involved sophisticated credit card fraud, and the method employed by the appellant to generate false credit card numbers and use them to make fraudulent purchases. The court also noted the total financial loss caused by the offending. The central legal issue was whether the sentence imposed was manifestly excessive or inadequate, and if there were any procedural errors in the sentencing process.

The court found that the sentence imposed was manifestly excessive due to a significant procedural error in the sentencing process. The magistrate had failed to consider the appellant's prospects of rehabilitation, which is a critical factor in sentencing. The court emphasised the importance of considering rehabilitation prospects in non-custodial sentencing and set aside the original sentence. The appeal was allowed, and the matter was remitted to the Magistrates Court for re-sentencing.

The court ordered that the sentence imposed by the magistrate be set aside and the matter be remitted to the Magistrates Court for re-sentencing, taking into account all relevant factors, including the appellant's prospects of rehabilitation.

Orders

Orders of the court

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Background

Background to the litigation

The respondent concedes grounds 6 and 7 are made out. That concession is appropriate. The appeal must be allowed, the sentence set aside and the appellant resentenced. As a result, it is only necessary to deal with grounds 6 and 7, but I will say something about ground 2 as it has some relevance to resentencing.Background The offending involved what can be described as credit card fraud. I respectfully adopt the Learned Magistrate’s description of the appellant’s method which he used in most of the 13 counts. The Learned Magistrate said:[3] … you were able to determine the algorithm to generate credit card numbers. You would damage your own card, requiring the store to manually enter your number into the EFTPOS terminal, you then enter the settings, putting in fraudulent credit card details resulting in transactions appearing complete. [3]Remarks on Penalty of Magistrate Smolicz dated 22 March 2022, p 2.Information dated 20 December 2021 (AMC-21-12206) Nine counts of Theft and the count of Attempted Theft were on this Information. The circumstances of those 10 counts were as follows. On 2 August 2021, the appellant entered an On the Run store at Surrey Downs. He selected various items valued at $299. The appellant paid using false credit card details using the EFTPOS facility. On 28 October 2021, the appellant attended a National Pharmacy at Ingle Farm. He purchased items with a total value of $441.81. He again used an EFTPOS terminal with false credit card details. On 11 November 2021, the appellant attended a store at Broadview and purchased items through the EFTPOS terminal valued at $20. That transaction was declined. The appellant then took the EFTPOS terminal and manually entered the amount of $2,000 using false credit card details. He subsequently demanded the refund of the $2,000 which was given to him. The next count relates to offending between 16 November and 18 November 2021. The appellant made multiple transactions and purchased multiple items, ordering them over the phone from a Mitre 10 store in Balhannah using false credit card details. The appellant collected some items with others being delivered to a Kennards Storage. The total loss to Mitre 10 was $10,371. On 23 November 2021, the appellant attended Mowers Plus and purchased $1,721 worth of goods using false credit card details. On 24 November 2021, the appellant attended a pharmacy at Alberton and made purchases totalling $604.13 using false credit card details. On 6 December 2021, the appellant attended a service station in Mount Barker. He purchased $1,376.56 worth of goods using false credit card details. He later returned to the store again and made six manual credit card transactions totalling $3,970.90. The total amount stolen was $5,438.46. On 9 December 2021, the appellant committed the Attempted Theft. The appellant attended a Liberty service station at Woodville. He attempted to purchase $478.76 of goods using fraudulent credit cards. On 10 December 2021, the appellant attended a Liberty service station in Clearview and made two transactions using false credit cards details and totalling $997.79.[4] The appellant then tried to purchase $800 worth of gambling tickets, but only $300 worth of tickets printed, requiring the relevant employee to refund $500. As the employee could not refund the money using the EFTPOS machine, the appellant was offered $100 cash and to return to collect the remaining $400 the following day. The appellant took the $100 cash. The total amount involved was $1,786.70. [4] The Liberty Service Station at Clearview Offence.

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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