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 39Magistrates 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…
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- [2024] SASC 39
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CaseChat Overview and Summary
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.
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