BILNEY v Police - [2004] SASC 356

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BILNEY v POLICE
Judgment of The Honourable Justice Besanko
9 November 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER - SENTENCING
Appeal against sentence – appellant convicted after pleading guilty of possession of liquor in contravention of a prohibition imposed by a regulation, refusing or failing without reasonable excuse to state his name and address when required by a member of the police force, disorderly behaviour, resist police and offensive language – where the Magistrate imposed one penalty for all five offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of one month's imprisonment suspended upon the appellant entering into a bond in the sum of $10 to be of good behaviour for a period of one year – whether the sentence imposed was manifestly excessive – whether the Magistrate erred in imposing one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 where one of the offences did not carry a penalty of imprisonment – appeal allowed – appellant re-sentenced – as to the offence of possession of liquor in contravention of a prohibition imposed by a regulation a conviction without penalty recorded – as to the other offences one penalty imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of one month's imprisonment suspended upon the appellant entering into a bond in the sum of $10 to be of good behaviour for a period of one year.
Magistrates Court Act 1991 s 42; Liquor Licensing Act 1997 s 131(1); Summary Offences Act 1953 s 74A, s 7(1), s 6(2); Criminal Law (Sentencing) Act 1988 s 18A, s 11, referred to.
Hermel v Police (2000) 76 SASR 336; R v Mathew [2001] SASC 390; Heatlie v SA Police (1993) 172 LSJS 94; Fiegert v Fauser (Mullighan J, 21 October 1992, unreported); Coulthard & Reinersten v Police [2003] SASC 125; Birch v Police [2003] SASC 354, considered.

BILNEY v POLICE
[2004] SASC 356
Magistrates Appeal

BESANKO J: This is an appeal against sentence brought pursuant to s 42 of the Magistrates Court Act 1991. The sentence was imposed by a Magistrate sitting at the Magistrates Court at Adelaide in the State of South Australia on 30^th August 2004. The sentence was imposed for the following offences:
1.On 1^st July 2004 at Adelaide in the said State in a public place, namely North Terrace, the appellant had possession of liquor in contravention of a prohibition imposed by a regulation pursuant to s 131(1) of the Liquor Licensing Act 1997.
2.On 1^st July 2004 at Adelaide in the said State, the appellant being a person reasonably suspected by Kym Hansen, a member of the police force, of having committed an offence, namely, possession of liquor in a dry zone, and having been required by such member of the police force to state his full…

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 BILNEY v Police

Details

AGLC: BILNEY v Police [2004] SASC 356
Case: [2004] SASC 356
Decision Date: 9 November 2004

CaseChat Overview and Summary

The appellant, Bilney, appealed against the sentence imposed by a Magistrate for several offences, including possession of liquor in contravention of a prohibition imposed by a regulation, refusal to state his name and address when required by a police officer, disorderly behaviour, resisting police, and offensive language. The court was tasked with determining whether the sentence was manifestly excessive and if the Magistrate had erred in imposing one penalty for all offences under section 18A of the Criminal Law (Sentencing) Act 1988.

The legal issues revolved around the appropriateness of the sentence imposed by the Magistrate, specifically whether the single penalty for all offences was justified and whether the sentence was excessive. The court had to consider the nature and seriousness of the individual offences, the cumulative effect of the offences, and whether the Magistrate correctly applied the principles of sentencing under section 18A of the Act.

The court held that the Magistrate's imposition of a single penalty for all offences was incorrect because one of the offences did not carry a penalty of imprisonment. Additionally, the court found that the sentence was not manifestly excessive, but the method of imposing a single penalty was flawed. Consequently, the appeal was allowed, and the appellant was re-sentenced. The court ordered that a conviction without penalty be recorded for the offence of possession of liquor in contravention of a prohibition imposed by a regulation, while for the other offences, one penalty was imposed pursuant to section 18A of the Act, consisting of one month's imprisonment suspended upon the appellant entering into a bond in the sum of $10 to be of good behaviour for a period of one year.

Orders