SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CHATTERTON v POLICE
[2020] SASC 71
Judgment of The Honourable Justice Parker
6 May 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES - CONDITIONS
This is an appeal against sentence. The appellant was sentenced by a Magistrate to 18 months and two weeks’ imprisonment with a nine-month non-parole period for offences committed on 5 January 2019, 3 February 2019, 25 April 2019 and 10 September 2019 and for breach of suspended sentence bond.
The appellant appealed to this Court on four grounds:
1. The sentence imposed was manifestly excessive;
2. The Magistrate erred in sentencing on an incorrect factual basis as to the appellant's antecedents;
3. The Magistrate erred in falling to apply a reduction in penalty of 40% in relation to the offence of theft committed on 25 April 2019; and
4. The Magistrate erred in enforcing the suspended sentence bond, which was unenforceable against the appellant because first, the bond only related to 16 of the 19 offences to which it should have related, and secondly, the bond contained an acknowledgement that the probationer had explained to him two facts which were not correct as a matter of law.
Held, per Parker J, allowing the appeal in part:
1. The mistake about the appellant’s antecedents was a process error. That error did not affect the sentences imposed. Ground 2 is dismissed.
2. The respondent conceded that the Magistrate erred in failing to apply a reduction in penalty of 40% in relation to the 25 April 2019 offence of theft. A discount of 30% was incorrectly applied. Ground 3 is allowed. The sentence for that offence will be reduced to two weeks and four days.
3. The bond entered into by the appellant on 4 August 2018 was valid. Ground 4 is dismissed.
4. It was appropriate to make the sentences for the two number plate offences committed on 10 September 2019 concurrent with the unlawful use of a motor vehicle offence. Ground 1 allowed to a limited extent.
5. The appellant is resentenced to a term of imprisonment of 16 months, two weeks and three days with a non-parole period of eight months. The sentence and non-parole period are both to commence from 10 September 2019.
Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 2017 (SA), referred to.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; R v Horstmann [2010] SASC 103, applied.
Director of Public Prosecutions (Cth) v Cole (1972) 2 SASR 105; Hodgins v Police [2008] SASC 176; Mann v Yannacos (1977) 16 SASR 54; Nollen v Police (2001) 78 SASR 421; R v Greengrass (2009) 104 SASR 262; R v Yazarlou [2014] ACTSC 283, discussed.
R v Bagnato (2011) 112 SASR 39; R v Belczacki
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- [2020] SASC 71
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The respondent concedes that the Magistrates remarks, in so far as they state that the appellant had received the benefit of a suspended term of imprisonment, are wrong. However, the respondent contends that the error is one of process. There is nothing to indicate that the process error affected the severity of the sentence. Given the overall sentence imposed, the process error is not a basis to interfere with the sentence. The sentence is within the discretion available to the Magistrate. There is no outcome error. Consideration of Ground 2 Kourakis J (as he then was) observed in R v Horstmann that an appellate court will not interfere with a sentence upon identification of a process error if it considers that the sentence was nevertheless appropriate.[1] While the mistake about the appellant’s antecedents constituted a process error, I am not persuaded that it affected the sentences imposed. Leaving aside the error identified by the appellant, the Magistrate gave detailed consideration to his personal circumstances. While some of the sentences tended towards the upper end of the range, they were within the sentencing discretion reasonably available to the Magistrate. I dismiss Ground 2.[1] [2010] SASC 103 at [36]–[38]; (2010) 269 LSJS 42. Ground 3: Incorrect discount applied The respondent has conceded Ground 3 being that the Magistrate erred in failing to apply a reduction in penalty of 40 per cent in relation to the sentence for the offence of theft on 25 April 2019. A discount of 30 per cent was incorrectly applied to the starting point of imprisonment for one month thereby resulting in an effective sentence of imprisonment for three weeks. I will resentence the appellant and reduce the sentence by a further three days to reflect the 40 per cent discount that should have been applied. The result is that the sentence of three weeks’ imprisonment for the theft on 25 April 2019 will be reduced to 2 weeks and 4 days. Ground 4: Validity of the suspended sentence bond On 16 July 2018, the appellant was sentenced by a Magistrate for multiple offences committed between 8 July 2017 and 5 April 2018. The Magistrate imposed sentences of imprisonment for some of the offending. The sentence was separated into four groups of offences. Each group was dealt with through the imposition of one penalty pursuant to s 26 of the Sentencing Act. One breach of bail was dealt with separately. The head sentence imposed by the Magistrate in 2018 was seven months and three weeks’ imprisonment, backdated to the time the appellant was remanded in custody. The Magistrate ordered four months of the head sentence to be served in custody and the balance of three months and three weeks to be suspended upon the appellant entering into a bond for 18 months with good behaviour and supervision conditions. The appellant entered that bond on 4 August 2018 before a Justice of the Peace. The bond was to expire on 3 February 2020. As I have previously noted, there were two applications before the Magistrate for enforcement of the bond. First, by the respondent alleging that the commission of the present offences was a contravention of the good behaviour condition. Secondly, by the DCS alleging that the appellant had breached his supervision conditions and had also returned positive results to drug tests.