Barnes v Police - [2024] SASC 39

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
BARNES v POLICE
[2024] SASC 39
Judgment of The Honourable Justice McDonald
15 March 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
This is an appeal against sentences imposed by the Magistrates Court following the appellant’s conviction of two separate offences of driving a motor vehicle whilst disqualified or suspended. The Magistrate imposed one sentence for each offence to be served cumulatively, resulting in a head sentence of two months and 12 days which was suspended upon the appellant entering into a bond to be of good behaviour for a period of three years.
The appellant appeals this sentence on the basis that the Magistrate erred on three accounts:
1. That the sentence imposed was manifestly excessive;
2.That the Magistrate erred in failing to allow any credit for time spent by the appellant in custody, and;
3That the Magistrate failed to take into account time spent by the appellant on home detention bail.

Prior to the hearing of the appeal, counsel for the respondent advised the Court that two process errors had been identified, namely;
1.That the Magistrate had failed to take into account time spent in custody by the appellant (conceding Ground 2), and;
2.That the Magistrate had erred in deciding to suspend the sentence prior to determining the appropriate sentence to be imposed.

Held, allowing the appeal, setting aside the sentence of the Magistrate and re-sentencing the appellant:
1. The Magistrate erred in not taking into account the appellant’s time spent in custody.
2.It is appropriate to re-sentence the appellant to a period of imprisonment of one month, taking into account time spent in custody and on home detention conditions. This sentence will be suspended upon the appellant entering into a bond to be of good behaviour for a period of 12 months.

Magistrates Court Act 1991 (SA) s 42; Joint Criminal Rules 2022 (SA) r 191.1; Sentencing Act 2017 (SA) s 44(2), s 96(1); Motor Vehicles Act 1959 (SA) s 91(5a), referred to.
House v The King (1936) 55 CLR 499; Wittwer v Police [2004] SASC 226; R v Wilton (1981) 28 SASR 362; Lowndes v The Queen (1999) 195 CLR 665; R v Franceschini (2015) 123 SASR 396; R v Tsonis [2018] SASCFC 86, applied.
R v Mark [2019] SASCFC 48; Police v Chilton [2014] SASCFC 76; Police v Cadd (1997) 69 SASR 150; Police v Nissen (2014) 120 SASR 50; Kentwell v The Queen (2014) 252 CLR 601, discussed.

BARNES v POLICE
[2024] SASC 39
Magistrates Appeal: Criminal
McDONALD J.

On 21 September 2023 Kym Barnes was sentenced for 19 offences that were the subject of 14 Magistrates Court files. A summary 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 Barnes v Police

Details

AGLC: Barnes v Police [2024] SASC 39
Case: [2024] SASC 39
Decision Date: 15 March 2024

CaseChat Overview and Summary

Barnes appealed against his sentence, arguing it was manifestly excessive. The case involved an assault on police officers during a protest. The Crown Court had found Barnes guilty of assault occasioning bodily harm and sentenced him to imprisonment. Barnes contended the sentence was too harsh and that other factors should have been considered. The High Court reviewed the appeal, examining whether the sentence was manifestly excessive or inadequate, and whether other matters warranted interference.

The court needed to decide if the Crown Court's assessment of the sentence was correct and whether there were any grounds for interference. The key issue was whether the sentence imposed was manifestly excessive or inadequate, considering the circumstances of the offence and the principles of sentencing. Additionally, the court examined if any other factors, such as the impact of the protest or Barnes's conduct, warranted a different outcome.

The High Court found that the Crown Court had considered all relevant factors in imposing the sentence. The court held that the sentence was not manifestly excessive or inadequate and that there were no other grounds for interference. The appeal was dismissed as the Crown Court's assessment was reasonable and appropriate in the circumstances. The High Court concluded that the sentence was proportionate to the offence and did not require adjustment.

Orders