Brady v Police

[2018] SASC 129

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

BRADY v POLICE

[2018] SASC 129

Judgment of The Honourable Justice Kelly (ex tempore)

5 September 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

Appeal against a sentence imposed by a Magistrate.

The appellant was charged with one count of failing to comply with a condition of a bail agreement and one count of stating false details. The Magistrate imposed a sentence of four months imprisonment. The appellant complains that he was entitled to a discount pursuant to s39 of the Sentencing Act 2017 (SA). The Magistrate did not mention in the sentencing remarks any applicable discount.

Held per Kelly J, allowing the appeal and resentencing the appellant:

1)  The failure of the Magistrate to mention the discount in the circumstances leads to the conclusion that an error may be inferred on the basis that the Magistrate failed to have regard to a relevant consideration.

2)  The appellant is resentenced to imprisonment for two months and four days.

Bail Act 1985 Section 17; Summary Offences Act 1953 Section 74; Sentencing Act 2017 Section 39, referred to.

BRADY v POLICE
[2018] SASC 129

1. HER HONOUR:       The appellant, Tyson Brady, appeals a sentence imposed in the Adelaide Magistrates Court on 4 July 2018. The appellant requires an extension of time within which to file the notice of appeal.  That application is not opposed and accordingly the appellant is granted until 1 August 2018 to file the notice.

2. The appellant had been charged with one count of failing to comply with a condition of a bail agreement on 24 December 2017 contrary to s.17 of the Bail Act 1985 (SA) and one count of stating false details on 3 March 2018 contrary to s.74 of the Summary Offences Act 1953 (SA). The penalties prescribed by those sections are a maximum penalty of two years imprisonment or a fine of $10,000 in respect of the Bail Act 1985 offence and a maximum fine of 1,250 or imprisonment for three months in respect of the stating false details.

3. The Magistrate recorded a conviction in both matters and backdated the sentence to 3 March 2018. The appellant complains that he was entitled to a discount of up to 30% pursuant to s.39 of the Sentencing Act2017 (SA). The Magistrate's remarks were very brief and did not mention anything about a discount. His Honour remarked on the seriousness of the breach of bail involving as it did cutting off a home detention bracelet the appellant was wearing or was required to wear as a condition of the bail agreement and moving away from premises where he was required to reside at all times.

4. The appellant's guilty pleas were entered more than four weeks after the appellant's first appearance on 5 March 2018 but before commencement of the trial. No trial date had been set. Accordingly, the discretion in s.39 of the Sentencing Act 2017 was enlivened.

5. There is no issue on appeal that the failure of the Magistrate to say anything about a discount in the circumstances of this case leads to the conclusion that an error may be inferred on the basis that the Magistrate failed to have regard to a relevant consideration.  The Crown solicitor has conceded the point.  It is thus necessary to exercise the discretion afresh and re-sentence the appellant.

6. The appellant is a 20 year old Aboriginal man. It is obvious from the nature of these offences that he had been in custody and was on remand on home detention bail for a count of alleged aggravated robbery and aggravated assault.  Since the commission of these offences I am told he has pleaded guilty in the District Court to the attempted aggravated robbery and aggravated assault and now awaits sentencing in that court.  I have also been informed this morning that there is a further matter of an aggravated criminal trespass allegation which is languishing in the Magistrates Court at the moment and may well be brought up to be determined at the same time as the District Court Judge determines sentence on the other matters. I would add that makes a lot of plain commonsense to me.

7. Turning to the matter at hand, I note the circumstances in which the appellant committed these two offences.  In my view they are serious examples of offences of their kind in light of the actual allegation that he cut off a bracelet whilst on home detention.  As such, there is an element of deterrence required in any sentence I impose.  I cannot therefore accede to counsel for the appellant's request that the Court not impose any sentence, that would not be right. However, in light of the very appropriate and fair concession by counsel for the Crown Solicitor that the sentence imposed by the Magistrate originally was at the upper end of the penalty range, I intend to exercise a degree of leniency in resentencing. 

8. In my view, the offending was serious. The appellant absconded from home detention for a period of two months which aggravated it and also he aggravated it by lying about his personal details in an attempt to avoid arrest from the police who eventually did catch up with him.  Nevertheless, I consider that a starting point of three months would be appropriate for both offences. Applying a discount of 30% to that, my calculations make a sentence of two months and four days.  Two months and four days is the sentence backdated to 3 March 2018.