BIRNIE v POLICE - [2006] SASC 263

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BIRNIE v POLICE
[2006] SASC 263
Judgment of The Honourable Justice Duggan
31 August 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
POST AND TELECOMMUNICATIONS - TELEPHONIC AND RELATED SERVICES - OFFENCES
Appellant pleaded guilty to three counts of using a telephone in a harassing manner contrary to s 474.17(1) of the Criminal Code 1995 (Cth) - two counts alleged appellant made forty-two calls to two women who were unknown to the appellant during which appellant would stay on the line and say nothing - other count alleged single phone call to one of the victims during which appellant said calls would cease if he could listen to her having sex over the phone - magistrate imposed single sentence of 12 months imprisonment and ordered appellant be released after six months - release conditional upon appellant entering into two year good behaviour bond - appeal against sentence - whether sentence was manifestly excessive - where calls caused considerable distress to both victims - where appellant had long history of severe personality disorder and extensive criminal history - where maximum custodial sentence available to magistrate was three years imprisonment - sentence was not manifestly excessive - whether magistrate erred in not exercising discretion pursuant to ss 20(1)(a) or 20(1)(b) Crimes Act 1914 (Cth) to allow immediate release of appellant - whether magistrate gave insufficient weight to appellant's prospects of rehabilitation - where appellant commenced limited employment and psychiatric therapy after offences were committed - where treating psyciatrist expressed view that imprisonment would have adverse effect on appellant's rehabilitation - found, not inappropriate for magistrate to direct that part of the sentence be served - treatment would only be interrupted for brief period - magistrate entitled to take into account elements of general and personal detterence - Held: Appeal dismissed.
Crimes Act 1914 (Cth) s 20; Criminal Code 1995 (Cth) s 474.17, referred to.

BIRNIE v POLICE
[2006] SASC 263
Magistrates Appeal

DUGGAN J. This is an appeal against a sentence imposed in the Adelaide Magistrates Court.
The appellant pleaded guilty to three counts of using a telephone in such a way that reasonable persons would regard its use as being harassing, contrary to s 474.17(1) of the Criminal Code 1995 (Cth).
It was alleged that the appellant made forty-two calls to each of two women. The calls were made to separate residences occupied by the women, who were unknown to the appellant. The appellant was also charged with a separate telephone call to one of the women, during which he told her that the calls would stop if he could listen to her over the telephone while she was having sex.
The appellant was sentenced to a single sentence of 12 months imprisonment for the three offences. Pursuant to s 20 of the Crimes Act 1914 (Cth), the magistrate ordered that the appellant be released after serving a period 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.

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Details

AGLC: BIRNIE v POLICE [2006] SASC 263
Case: [2006] SASC 263
Decision Date: 31 August 2006

CaseChat Overview and Summary

In the case of Birnie v Police, the appellant appealed against the sentence imposed by a magistrate for his conviction on three counts of using a telephone in a harassing manner. The appellant had made numerous calls to two women, causing them considerable distress. Despite the appellant's history of severe personality disorder and a criminal record, the magistrate imposed a sentence of 12 months imprisonment, with release after six months subject to a two-year good behaviour bond. The appeal focused on whether the sentence was manifestly excessive and whether the magistrate erred in not exercising discretion to allow immediate release under sections 20(1)(a) or 20(1)(b) of the Crimes Act 1914 (Cth).

The court considered the gravity of the offence and the distress caused to the victims, the appellant's criminal history, and the maximum custodial sentence available to the magistrate, which was three years imprisonment. The court held that the sentence was not manifestly excessive, as it was within the permissible range and took into account the need for general and personal deterrence. Regarding the exercise of discretion to allow immediate release, the court found that the magistrate was entitled to consider the appellant's prospects of rehabilitation and the potential benefits of serving part of the sentence in custody. The court concluded that the magistrate did not err in directing that part of the sentence be served, as the appellant had only recently commenced limited employment and psychiatric therapy, and the treating psychiatrist had expressed that imprisonment would have an adverse effect on the appellant's rehabilitation.

The appeal was dismissed, with the court affirming the magistrate's decision on the sentence. The court held that the sentence was not manifestly excessive and that the magistrate had appropriately exercised their discretion in directing that part of the sentence be served. The decision underscores the importance of considering the severity of the offence, the need for deterrence, and the prospects of rehabilitation when imposing a sentence.

Orders