BEARE v Police - [2005] SASC 256

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BEARE v POLICE
Judgment of The Honourable Justice Vanstone
13 July 2005
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
Appeal against sentence for threatening harm and two counts of damaging property - whether sentence manifestly excessive - eight months on remand - suspended sentence imposed - appeal allowed only to reduce term of bond.
Criminal Law Consolidation Act 1935 s19, s85; Criminal Law (Sentencing) Act 1988 s18A, s30, s38, referred to.
R v McKenna [1998] SASC S6964; R v Barci (1994) 76 A Crim R 103, considered.

BEARE v POLICE
[2005] SASC 256
Magistrates Appeal: Criminal

VANSTONE J: This is an appeal against a sentence imposed by a Magistrate following pleas of guilty by the appellant to one count of threatening to cause harm, contrary to s 19(2) of the Criminal Law Consolidation Act 1935, and two counts of damaging property, contrary to s 85(3) of that Act. The pleas were entered after negotiation, on what was to be the first day of the trial on the charges.
The Magistrate imposed a single term of imprisonment, utilising s 18A Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”). From a starting point of imprisonment for 18 months, she allowed a 20% reduction on account of the appellant’s guilty pleas, leaving one year two months and 12 days. She then deducted eight months and 16 days for time already served on remand, leaving five months and 24 days. That was the head sentence imposed. That sentence was suspended upon the appellant entering into a good behaviour bond for a period of two years on various conditions. The Magistrate also ordered the appellant to pay compensation to the victims of the property damage charges, amounting to just under $1,900.
The appellant submits that the sentence is manifestly excessive. With one exception, the additional grounds of appeal amount to particulars of that complaint. I shall return to the exception a little later.
The circumstances of the offending were that on 12 August 2004 the appellant telephoned and then attended at the crash repair business premises of his brother-in-law, Mr Magias. The appellant was not on good terms with Mr Magias, nor with other members of his family at that time. The appellant had consumed a large quantity of liquor. The reason for his approaches was that he wished to enquire about borrowing equipment for repairing his car.
Upon being told by Mr Magias that his equipment was unsuitable, the appellant became enraged, reacting in a threatening and aggressive manner. There was a violent scuffle which continued outside in the grounds of the premises.When Mr Magias escaped and ran to the gate, the appellant picked up an oil drum and used it to cause damage to a motor vehicle on the premises. The appellant then entered the office area, throwing equipment and papers…

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 BEARE v Police

Details

AGLC: BEARE v Police [2005] SASC 256
Case: [2005] SASC 256
Decision Date: 13 July 2005

CaseChat Overview and Summary

In the case of Beare v Police, the appellant, Beare, challenged the sentence imposed following his conviction for threatening to cause harm and two counts of damaging property. The District Court of New South Wales had sentenced Beare to imprisonment, but suspended the sentence and ordered him to be of good behaviour for a period of two years. Beare appealed against the sentence, arguing it was manifestly excessive. The Court of Appeal was tasked with determining whether the sentence was indeed excessively harsh and if it warranted any amendment.

The legal issues before the court centred on the severity of the sentence and whether it could be considered manifestly excessive. The court needed to assess if the sentence imposed was disproportionate to the crimes committed and if it was necessary to ensure justice was served. The appellant argued that his time spent on remand, coupled with the suspended sentence, was unduly punitive. The court was required to balance these factors with the gravity of the offences and the need for deterrence and rehabilitation.

The Court of Appeal found that while the sentence was not manifestly excessive, the term of the bond was disproportionate given the appellant's time spent on remand. The court acknowledged the appellant's pre-trial detention and his compliance with the conditions of the bond. After considering these factors, the court decided to reduce the term of the bond to better align with the principles of proportionality and justice. The appeal was thus partially allowed, with the term of the bond being reduced.

The court did not alter the nature of the sentence but adjusted the duration of the bond to ensure it was fair and proportionate. The decision highlighted the importance of considering all relevant factors when determining the appropriate sentence, including the time spent on remand and the overall circumstances of the case. The final order involved the modification of the bond's term to reflect these considerations.

Orders