BRADY v POLICE - [2022] SASC 114

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
BRADY v POLICE
[2022] SASC 114
Judgment of the Honourable Justice Kimber (ex tempore)
7 October 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
The appellant appeals sentences imposed by a Magistrate on 8 July 2020 for one count of Theft and one count of Breach of Bail.
At the time of sentence, the appellant had a poor record. The appellant had been previously convicted of numerous dishonesty offences and breaches of bail. After identifying a starting point of four months for the Theft and reducing that starting point by 30 per cent for the plea of guilty and a further eight days for time in custody, a sentence of two months, 16 days was imposed. That sentence was made cumulative upon a sentence of five months which had commenced on 21 March 2020.   After identifying a starting point of six months for the Breach of Bail and reducing that starting point by 30 per cent for the plea of guilty, a sentence of four months and one week was imposed and made cumulative on the sentence for the Theft.
The effective total head sentence was 11 months and 23 days, commencing on 21 March 2020. The effective total head sentence was partially suspended by the Magistrate, who ordered the appellant be released after eight months upon entry into a bond of $400 to be of good behaviour for 12 months.
The Notice of Appeal was filed on 29 July 2022 and made more than one complaint of manifest excess.
Held, per Kimber J, dismissing the appeal:
1.      The sentences imposed for the Theft and the Breach of Bail were not manifestly excessive.
2.      There was no error in making the two sentences cumulative.
3.      The application for an extension of time to appeal is refused.
4.      The appellant is ordered to pay costs in the amount of $750.
Criminal Law Consolidation Act 1935 (SA) s 17(1), s 134, referred to.
House v The King (1936) 55 CLR 499; R v Valesic (2018) 132 SASR 250; R v Gray [2004] SASC 218, applied.

BRADY v POLICE
[2022] SASC 114
Magistrates Appeal: Criminal
KIMBER J:
Overview

This is an appeal with respect to sentences imposed on 8 July 2020 by a Magistrate. The sentences imposed were one count of Theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) and one count of Breach of Bail contrary to s 17(1) of the Bail Act 1985 (SA).
For the offence of Theft, the Magistrate identified a starting point of four months. Reductions of 30 per cent for…

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 BRADY v POLICE

Details

AGLC: BRADY v POLICE [2022] SASC 114
Case: [2022] SASC 114
Decision Date: 7 October 2022

CaseChat Overview and Summary

Brady appeals against his conviction and sentence, and the police seek an extension of time to respond. The appeal pertains to the cumulative nature of sentences for theft and breach of bail, and the imposition of a suspended sentence of imprisonment. The court considered whether the sentences should have been concurrent rather than cumulative, given the separate nature of the offences. It held that there was no error in making the sentences cumulative, as they were committed about six months apart. The court also held that the cumulative nature of the sentences did not warrant a reduction in the individual sentences or any degree of concurrency.

The appeal against the sentence was dismissed, and the application for an extension of time was refused. The court ordered that the appellant pay costs in the amount of $750.00. The court found that the appellant's three grounds of appeal were without merit, and the sentences imposed were appropriate given the nature of the offences and the appellant's criminal history. The court emphasised the importance of considering the separate nature of the offences when determining the appropriate sentence, and held that there was no error in making the sentences cumulative. The appeal was dismissed, and the appellant was ordered to pay costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As to Ground 3, this appeal is not the occasion to re-state the principles which apply to whether sentences should be cumulative or concurrent and the matters to be considered when sentences are made cumulative upon a sentence already being served. It is sufficient to observe the offences of Theft and Breach of Bail were separate offences committed about six months apart. There was no error in making those two sentences cumulative. Further, that the two sentences imposed were cumulative upon the sentence of five months did not warrant lesser individual sentences that were imposed, nor some degree of concurrency between the two sentences imposed on 8 July 2020. Conclusion For the above reasons, the three grounds of appeal are without merit. I make the following orders:1. The application for an extension of time is refused. 2. The appeal is dismissed. 3. The appellant will pay costs in the amount of $750.00.

Ratio Decidendi

Legal Principle Established

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