Bush v Police - [2009] SASC 318

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BUSH v POLICE
[2009] SASC 318
Judgment of The Honourable Chief Justice Doyle (ex tempore)
7 October 2009
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OTHERS
Appellant pleaded guilty to one count of theft – Magistrate sentenced appellant to three months' imprisonment, two months to be suspended upon appellant entering into a bond to be of good behaviour – power to suspend part of a sentence of imprisonment pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) arises only when length of sentence is "more than three months but less than one year" – appellant appealed against sentence imposed by Magistrate.
HELD: as the sentence was not one of "more than three months", Magistrate did not have power to suspend part of that sentence – appeal allowed – appellant re-sentenced – sentence of imprisonment appropriate having regard to requirement for a deterrent sentence – sentence imposed wholly suspended having regard to fact that appellant had not been sentenced to imprisonment and had not received the benefit of suspension of a sentence of imprisonment in the past, and having regard to the uncertainty surrounding the arrangements that would be made with respect to the care of her children.
Criminal Law Consolidation Act 1935 (SA) s 134(1); Criminal Law (Sentencing) Act 1988 (SA) s 38, s 38(2a), referred to.
Police v D [2004] SASC 131, discussed.

BUSH v POLICE
[2009] SASC 318
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): Ms Bush pleaded guilty to one count of theft, an offence against s 134(1) of the Criminal Law Consolidation Act 1935 (SA). The offence carries with it a maximum penalty of imprisonment for 10 years. The Magistrate sentenced Ms Bush to imprisonment for three months. He declined to suspend the sentence of imprisonment in its entirety. He did, however, suspend two months of the sentence on condition that Ms Bush enter into a bond to be of good behaviour. The bond required Ms Bush to be of good behaviour for two months, commencing on the date of her completion of one month’s imprisonment.
Ms Bush appeals against the sentence that the Magistrate imposed. She does so on the basis that the failure wholly to suspend the sentence of imprisonment resulted in a sentence that is manifestly excessive. She also argues that the Magistrate erred in failing to take account of the personal circumstances of Ms Bush. She also argues that, in a respect that I will identify, there was a technical flaw in the sentence.
Background
A complaint was laid by a member of the police force charging Ms Bush with the offence of theft. The property the subject of the offence was a woman’s handbag. The complaint alleged that the theft occurred on 24 May 2009, when Ms Bush took a handbag from a…

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

Case: [2009] SASC 318
Decision Date: 7 October 2009

CaseChat Overview and Summary

In the matter of Bush v Police, the appellant, Ms Bush, appealed against the sentence imposed by the Magistrate, arguing that the failure to wholly suspend the sentence of imprisonment resulted in a sentence that was manifestly excessive. Additionally, she argued that the Magistrate had erred in not taking account of her personal circumstances. The central issue was whether the Magistrate had the power to suspend part of the sentence of imprisonment, given the statutory provisions of the Criminal Law (Sentencing) Act 1988 (SA). Specifically, the court needed to determine if the sentence imposed was one of "more than three months but less than one year," which is the threshold for suspending part of a sentence of imprisonment.

The court examined the statutory provision, which allows for the suspension of part of a sentence of imprisonment only if it is more than three months but less than one year. The sentence imposed by the Magistrate was three months' imprisonment, which did not meet this threshold. Consequently, the court concluded that the Magistrate had erred in suspending part of the sentence. This conclusion aligns with previous judicial reasoning in Police v D [2004] SASC 131, where Gray J held that a sentence of exactly 12 months did not allow for the suspension of part of the sentence. Therefore, the appeal was allowed, and the sentence was set aside. In re-sentencing Ms Bush, the court considered the appropriate sentence to be one of imprisonment, wholly suspended due to Ms Bush's circumstances, including her status as a single mother of two dependent children and the uncertainty surrounding the care arrangements for her children if she were to be imprisoned. The court emphasised the need for a sentence that took into account her unique personal situation and the potential hardship on her children.

Orders

Orders of the court

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Background

Background to the litigation

Ms Bush appeals against the sentence that the Magistrate imposed. She does so on the basis that the failure wholly to suspend the sentence of imprisonment resulted in a sentence that is manifestly excessive. She also argues that the Magistrate erred in failing to take account of the personal circumstances of Ms Bush. She also argues that, in a respect that I will identify, there was a technical flaw in the sentence.Background A complaint was laid by a member of the police force charging Ms Bush with the offence of theft. The property the subject of the offence was a woman’s handbag. The complaint alleged that the theft occurred on 24 May 2009, when Ms Bush took a handbag from a woman standing at a bus stop. According to the version of events that Ms Bush gave police when questioned, the bag was sitting on top of a bag that was on the ground next to the woman. It appears that the Magistrate sentenced Ms Bush on this basis. Ms Bush ran off with the handbag and the woman ran after her. The bag contained the woman’s prescription medication, credit cards, driver’s licence and house keys. Ms Bush got into a car driven by a man. The car left the scene. A witness followed the car but lost sight of it in traffic. The witness and the woman whose handbag was stolen saw the car’s numberplate. The police traced the numberplate to Ms Bush. On 1 September, when Ms Bush first appeared in the Magistrates Court on the charge, she pleaded guilty. After hearing submissions in relation to sentence, the Magistrate sentenced Ms Bush. He summarised the circumstances of the offence. He considered that the offence was very serious. The only thing that separated it from the more serious offence of robbery was the absence of violence or threats of violence. He said that the offence was more serious than the theft of goods from a shop because the property the subject of the offence comprised the victim’s personal belongings, which would have been of some value to the victim. He noted that the victim suffered as a result of the offence and that it was likely that she would now be anxious when out in public with her handbag. The Magistrate accepted that Ms Bush had had a difficult life. In particular, he noted that Ms Bush’s mother had died when Ms Bush was a child. He accepted that this would have been very distressing for Ms Bush. It is not easy to see, however, how this explains the offending or somehow lessens the culpability of Ms Bush. The Magistrate noted that Ms Bush had been convicted of property damage in 2004 and of receiving stolen property in 2001, among other minor offences. Of more relevance was the fact that Ms Bush had been convicted of theft on 14 April 2009, that is, slightly more than a month prior to the commission of the offence in question. On that occasion, Ms Bush was ordered to perform community service. In light of that and notwithstanding everything that had been put to him, the Magistrate considered that a sentence of imprisonment, part of which was to be served, was appropriate. The Magistrate adopted a starting point of four months’ imprisonment, which he reduced to three months on account of Ms Bush’s plea of guilty. As I have said, the Magistrate suspended two months of that sentence on condition that Ms Bush enter into a bond to be of good behaviour for two months to commence after her release from prison.Consideration

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ

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Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ

In light of that and notwithstanding everything that had been put to him, the Magistrate considered that a sentence of imprisonment, part of which was to be served, was appropriate. The Magistrate adopted a starting point of four months’ imprisonment, which he reduced to three months on account of Ms Bush’s plea of guilty. As I have said, the Magistrate suspended two months of that sentence on condition that Ms Bush enter into a bond to be of good behaviour for two months to commence after her release from prison.Consideration Section 38 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) enables the court to suspend a sentence of imprisonment only if it considers that there is “good reason” for it to do so. Pursuant to s 38(2a), the court can suspend part of a sentence of imprisonment if the sentence or sentences to which the defendant is liable is, or are in combination, for more than three months but less than one year. In that event, the court can order that the defendant serve a specified period, being not less than one month, of the imprisonment and the court can suspend the remainder on condition that the defendant enter into a bond. A court can suspend part of a sentence of imprisonment under this provision only if that sentence is more than three months but less than one year. The sentence that the Magistrate imposed was three months’ imprisonment. It was not more than three months’ imprisonment. The appeal proceeded on the basis that, in ordering that part of the sentence of imprisonment be suspended, the Magistrate erred. I note that in Police v D [2004] SASC 131 Gray J reached the same conclusion when the sentence in question was imprisonment for exactly 12 months. He concluded that the sentence imposed was not less than one year. In my opinion, the concession made by Ms Shanks, counsel for the respondent, is correct. The Magistrate has erred. He had power to do what he did only if the sentence that was imposed was one of more than three months. A sentence of exactly three months did not enliven the relevant power. Accordingly, the sentence must be set aside. It is appropriate that I re-sentence Ms Bush. There is no opposition to this course of action. In doing so, I must consider the matter afresh. The question is no longer whether the Magistrate is wrong; the question is what sentence I consider to be appropriate. Mr Mead, counsel for Ms Bush on appeal, submits that in the event that a sentence of imprisonment is imposed, there is good reason to suspend any such sentence. He submits that Ms Bush has never had the benefit of a suspended term of imprisonment before, nor has she been sentenced to a term of imprisonment before. He emphasises the fact that Ms Bush is a single mother of two dependent children. It is not entirely clear what can be done with the children if she is imprisoned, although it may be that they can be cared for by her father, who is 57 years of age and lives in a boarding house. However, just how this would be worked out is not clear to me.