BLAND v Police

[2005] SASC 430

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

BLAND v POLICE

Judgment of The Honourable Justice Debelle (ex tempore)

10 November 2005

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - MISCELLANEOUS MATTERS - ILLEGALITY OF SENTENCES

Appeal from Magistrate – appellant pleaded guilty to two offences against Summary Offences Act 1953 – offending committed whilst subject to suspended sentence ordered in District Court – combined maximum period of imprisonment in respect of both offences 9 months – appellant sentenced to 10 months imprisonment – held, sentence unlawful – appeal allowed – appellant remanded for sentence before District Court pursuant to s 57(4a) of Criminal Law (Sentencing) Act 1988.

Summary Offences Act 1953 s 6(2), s 7(1); Criminal Law (Sentencing) Act 1988 s 18A, s 57(4a), referred to.

BLAND v POLICE
[2005] SASC 430

Magistrates Appeal:  Criminal

1. DEBELLE J.        This is an appeal against sentence.

2. On 7 July 2005 the appellant pleaded guilty in the Adelaide Magistrates Court to two offences contrary to the Summary Offences Act1953. The first was that the appellant had behaved in a disorderly manner in a public place contrary to s 7(1)(a) of the Summary Offences Act. The second was that the appellant had resisted a member of the police force in the execution of his duty contrary to s 6(2) of the Summary Offences Act.  Both offences are alleged to have occurred on 27 March 2005.  The appellant pleaded guilty.  Upon the magistrate indicating that he proposed to order a period of imprisonment, counsel for the appellant successfully applied for an adjournment in which to obtain a psychiatric report.  The report was obtained and the matter was listed for hearing again on 24 August 2005.

3. The magistrate ordered that the appellant be convicted on both counts. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 he imposed one penalty in respect of both offences.  He sentenced the appellant to imprisonment for a period of 10 months, that sentence being suspended upon the appellant entering into a bond in the sum of $100 to be of good behaviour for a period of three years.

4. The appellant has appealed against the sentence on the ground that it is manifestly excessive. The maximum penalty for an offence against s 7(1)(a) of the Summary Offences Act is a fine of $1250 or imprisonment for three months. The maximum penalty for an offence against s 6(2) of that Act is $2500 or six months imprisonment. The sentence ordered by the magistrate exceeded the maximum penalty even if both offences were considered together. The sentence is, therefore, contrary to law. The appeal must be allowed and the sentence set aside.

5. At the time of his offending the appellant was subject to a suspended sentence which had been ordered in the District Court of South Australia on 16 November 2004.  On that occasion the appellant was sentenced for two offences.  The first was an aggravated serious criminal trespass in respect of a non‑residential building.  The second was dishonestly taking property without the owner’s consent.  The appellant was sentenced to imprisonment for a period of 15 months with a non‑parole period of 12 months.  That sentence was suspended upon the appellant entering into a bond to be of good behaviour for two years in the sum of $500.  The appellant has been charged in the District Court with a breach of the terms of his bond.

6. Upon the magistrate finding the appellant guilty of these two offences, two courses were open by reason of s 57(4a) of the Criminal Law (Sentencing) Act1988.  The first was to sentence the appellant and remand him to the District Court to be dealt with for breach of the conditions of the bond.  Alternatively, the magistrate could have remanded the appellant to the District Court to be sentenced for the offence and dealt with for the breach of the conditions of the bond.

7. In my view it is appropriate for a single sentencing régime to be put in place in respect of this offending and the breach of the bond.  The appropriate order, therefore, is to remand the appellant to the District Court to be sentenced for both the offending in breach of the Summary Offences Act and for the breach of the conditions of his bond.  I am informed by counsel that there is a directions hearing in relation to this matter on 30 November 2005.

8. The order of the Court will therefore be:

   1.Appeal allowed.

   2.Set aside the sentence ordered on 24 August 2005.

   3.Remit the matter to the District Court of South Australia for sentence on 30 November 2005.