CAPALBO v POLICE
[2015] SASC 127
•25 August 2015
Supreme Court of South Australia
(Magistrates Appeals: Criminal)
CAPALBO v POLICE
[2015] SASC 127
Judgment of The Honourable Justice Stanley (ex tempore)
25 August 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
TRAFFIC LAW - OFFENCES
MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY
CRIMINAL LAW - PROCEDURE - BAIL - CONDITIONS
Appeal against sentence.
The appellant was before the court in relation to a range of offences across a number of files. The magistrate recorded convictions in respect of each offence. In relation to charges that did not carry a term of imprisonment, the magistrate recorded convictions without further penalty. In relation to the remaining charges, the magistrate imposed a single penalty pursuant to s18A of the Criminal Law (Sentencing) Act 1988 (SA) of 2 years imprisonment with a non-parole period of 15 months suspended upon the appellant entering into a bond in the amount of $500 to be of good behaviour for a period of 2 years. It is against this sentence that the appellant now appeals.
The appellant seeks to have the sentence set aside on the grounds that the sentence is manifestly excessive, the sentencing remarks are inadequate, the appellant was not legally represented, the magistrate failed to inform the appellant of his rights in accordance with the duties of the court to an unrepresented defendant, a number of charges were disputed, there is fresh evidence upon which the appellant seeks to rely and there has been a miscarriage of justice. The respondent does not concede the first ground of appeal, namely, that the sentence is manifestly excessive. However, the respondent does concede that the magistrate erred in failing to provide adequate reasons in respect to a number of aspects of sentence. The respondent concedes that an error may be inferred in the exercise of the sentencing discretion in that the magistrate failed to have regard to relevant considerations. Accordingly, it is conceded the appeal should be allowed and there is no opposition to the relief sought by the appellant, namely, that the matter be remitted to the Magistrates Court for resentencing.
Held (per Stanley J):
1. Extend the time within which to file the notice of appeal to 22 June 2015.
2. Appeal allowed.
3. Sentence set aside.
4. Matter remitted to the Magistrates Court for resentencing.
5. The respondent is to pay the costs of the appeal fixed in the sum of $250.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
CAPALBO v POLICE
[2015] SASC 127Magistrates Appeal
Ex Tempore
STANLEY J:
This is an appeal against a sentence of 2 years imprisonment with a non-parole period of 15 months suspended upon the appellant entering into a bond to be of good behaviour in the amount of $500.00 for a period of 2 years which was imposed by a magistrate on 1 August 2013 in respect of a range of offences across a number of files.
The appellant was before the court in relation to offences of driving without due care and 2 counts of failing to exchange details committed on 23 August 2012; failing to pay a taxi fare, failing to comply with a bail agreement and contravening a term of an intervention order committed on 27 September 2012; failing to comply with a bail agreement, contravening a term of an intervention order and aggravated assault committed on 1 November 2012; contravening a term of an intervention order committed on 20 November 2012; theft, deception, dishonestly manipulating a machine, failing to comply with a bail agreement and contravening a term of an intervention order committed on 26 November 2012; failing to comply with a bail agreement and contravening a term of an intervention order committed on 28 November 2012; failing to comply with a bail agreement and contravening a term of an intervention order committed on 29 November 2012; 2 counts of failing to comply with a bail agreement and driving unauthorised committed on 18 December 2012 and 10 January 2013; failing to comply with a bail agreement and contravening a term of an intervention order committed on 20 December 2012; failing to comply with a bail agreement and contravening a term of an intervention order committed on 22 December 2012; theft and deception committed on 27 December 2012; failing to give way when turning at an intersection with traffic lights, failing to exchange details, driving unregistered, driving uninsured, driving unauthorised and failing to comply with a bail agreement committed on 30 April 2013; theft committed on 9 May 2013; 2 counts of failing to comply with a bail agreement committed on 30 May 2013 and 31 May 2013 respectively; and failing to comply with a bail agreement and contravening a term of an intervention order committed on 30 May 2013.
The appellant entered guilty pleas in relation to each of the offences that were before the court, although there appears to be some uncertainty in this respect in relation to the offending committed on 9 May 2013. The magistrate provided brief remarks on penalty. The magistrate proceeded to record convictions in respect of each offence. In relation to charges that did not carry a term of imprisonment, the magistrate recorded convictions without further penalty. The magistrate also disqualified the appellant from holding or obtaining a driver’s licence for a period of 12 months from 1 August 2013. In relation to the remaining charges, the magistrate imposed a single penalty pursuant to s18A of the Criminal Law (Sentencing) Act 1988 (SA) of 2 years imprisonment with a non-parole period of 15 months suspended upon the appellant entering into a bond in the amount of $500.00 for a period of 2 years. It is against this sentence that the appellant now appeals.
The appellant seeks an extension of the time within which to institute the appeal. He submits he had provided instructions to appeal but was not able to fund the appeal. The respondent does not oppose this application and in the circumstances I extend the time within which to file the notice of appeal to 22 June 2015.
The appellant seeks to have the sentence set aside on the grounds that the sentence is manifestly excessive, the sentencing remarks are inadequate, the appellant was not legally represented, the magistrate failed to inform the appellant of his rights in accordance with the duties of a court to an unrepresented defendant, a number of charges were disputed, there is fresh evidence upon which the appellant seeks to rely and there has been a miscarriage of justice.
The respondent does not concede the first ground of appeal, namely, that the sentence is manifestly excessive. However, the respondent does concede that the magistrate erred in failing to provide adequate reasons in respect of a number of aspects of the sentence, including whether any discount was applied in relation to the appellant’s pleas of guilty; whether any credit was given for time spent in custody and on home detention bail; whether, when in fixing penalty in respect to charges of breaching bail and contravening an intervention order, the magistrate properly took into account that the appellant was in company with an individual who was both a protected person in relation to the intervention orders and an individual the appellant was prohibited from contacting as a condition of the bail agreements; and whether the magistrate considered whether the sentence imposed in respect of any of the charges ought to have been served cumulatively or concurrently in whole or in part.
The respondent further accepts that in relation to the offending committed on 1 November 2012 the appellant appears to have pleaded guilty to a charge of aggravated assault in circumstances in which the alleged circumstance of aggravation, namely, that the complainant was a domestic partner of the appellant, was not the subject of any evidence. The respondent accepts that the reasons of the magistrate also fail to disclose whether he considered that the conduct of the appellant could properly be characterised as two or more incursions into criminal conduct, or could be considered a multifaceted course of criminal conduct, so as to warrant concurrent sentences. The respondent concedes that for these reasons an error may be inferred in the exercise of the sentencing discretion in that the magistrate failed to have regard to relevant considerations. Accordingly, it is conceded that the appeal should be allowed and there is no opposition to the relief sought by the appellant, namely, that the matter be remitted to the Magistrates Court for resentencing.
In the circumstances, I am satisfied that the appeal ought to be allowed, that the sentence should be set aside and the matter ought to be remitted to the Magistrates Court for resentencing.
I so order.
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