BUCK v Police - [2005] SASC 485

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BUCK v POLICE
Judgment of The Honourable Justice Duggan (ex tempore)
8 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence imposed by magistrate - appellant pleaded guilty to the offences of theft, interfering with a motor vehicle and being unlawfully on premises - sentenced to a global penalty of 4 months imprisonment in respect of all offences with the condition that he perform 120 hours community service - whether magistrate considered Criminal Law (Sentencing) Act 1988 s 11 - whether magistrate erred in allowing a 20 per cent reduction for appellant's lack of prior convictions - appeal allowed - suspended sentence of imprisonment set aside - in lieu thereof the appellant required to enter into a good behaviour bond in sum of $200 for period of two years and to perform 120 hours of community service within 10 months.
Criminal Law (Sentencing) Act 1988 s 11, referred to.
Budnjo v Police (2003) 225 LSJS 296, applied.

BUCK v POLICE
[2005] SASC 485
Magistrates Appeal (Ex tempore)

Duggan J. The appellant pleaded guilty in the Magistrates Court to three offences arising out of the same incident. On 25 May 2005 he entered the premises of an automobile wrecker at Lonsdale and stole 15 litres of petrol. He was charged with the offences of theft, interfering with a motor vehicle, and being unlawfully on premises.
The learned magistrate convicted the appellant and sentenced him to a global penalty of imprisonment for four months in respect of all offences. The sentence was suspended upon the appellant entering into a bond to be of good behaviour for two years. It was a condition of the bond that he perform 120 hours of community service within a period of 10 months. The appellant has appealed against the sentence on various grounds.
The appellant was 25 years of age at the time he was sentenced. He had no relevant previous convictions. He is in receipt of a disability support pension as a result of long-standing learning and memory difficulties. Since leaving school he has had various jobs but has experienced difficulty in retaining employment because of his disability. Evidence of good character was tendered before the magistrate.
One of the grounds of appeal complains that the magistrate erred in failing to consider whether a sentence of imprisonment was an available punishment having regard to s 11 of the Criminal Law (Sentencing) Act 1988 (“the Act”). Ms Waite, for the appellant, also relied on a related complaint that the magistrate did not consider whether alternatives to imprisonment were appropriate in all the circumstances of the case. Section 11(1) of the Act provides as follows:
11(1) A sentence of imprisonment may only be imposed –
(a)if, in the opinion of the court –
(i)the defendant has shown a tendency to…

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 BUCK v Police

Details

AGLC: BUCK v Police [2005] SASC 485
Case: [2005] SASC 485
Decision Date: 8 December 2005

CaseChat Overview and Summary

The appellant in this case appealed the sentence imposed by a magistrate for various offences, including theft, interfering with a motor vehicle, and being unlawfully on premises. The appellant pleaded guilty to all charges and was sentenced to a global penalty of four months imprisonment, which was to be served concurrently, with the condition that he perform 120 hours of community service. The appeal centred on whether the magistrate had properly considered the relevant sentencing principles and whether the sentence was appropriate given the circumstances.

The primary legal issues were whether the magistrate had correctly applied the relevant provisions of the Criminal Law (Sentencing) Act 1988, specifically section 11, and whether the reduction in the sentence for the appellant's lack of prior convictions was justified. The appellant argued that the sentence was excessive and that the magistrate had not adequately considered the appropriate sentencing principles. The court needed to determine whether the sentence imposed was manifestly excessive or inappropriate, and if the magistrate's decision to reduce the sentence by 20 per cent for the appellant's lack of prior convictions was reasonable.

The court found that the magistrate had not fully considered the relevant sentencing principles and that the sentence imposed was manifestly excessive. The court highlighted that the magistrate had not adequately addressed the objectives of sentencing as outlined in the Act. Additionally, the court determined that the 20 per cent reduction for the lack of prior convictions was not justified, given that the appellant's criminal history was not entirely clean. Consequently, the appeal was allowed, and the sentence was set aside. In place of the original sentence, the appellant was required to enter into a good behaviour bond in the sum of $200 for a period of two years and to perform 120 hours of community service within ten months.

Orders