CHATTERTON v Police

Case [2020] SASC 71

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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CHATTERTON v Police [2020] SASC 71
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[2020] SASC 71
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CaseChat Overview and Summary

Chatterton appeals against his sentence imposed by a Magistrate for multiple offences committed on various dates. The appellant was sentenced to 18 months and two weeks’ imprisonment with a nine-month non-parole period. The primary legal issues before the court were whether the Magistrate erred in applying the totality principle, if there was an incorrect discount applied to the penalty for a theft offence, and the validity of the suspended sentence bond. The court considered these issues in the context of the appeal's grounds. The court concluded that the Magistrate’s process error regarding the appellant’s antecedents did not affect the sentence imposed, and hence dismissed Ground 2 of the appeal. However, the court found merit in Ground 3, accepting the respondent’s concession that a 40 per cent discount should have been applied to the sentence for the theft offence on 25 April 2019. This led to a reduction in the sentence by three days. The court also upheld Ground 1 of the appeal, reducing the overall sentence to one year, four months, two weeks, and three days, with a non-parole period of eight months. The court did not disturb the costs, victims of crime levy, court fees, and the forfeiture of property to the Crown, nor the suspension of the appellant’s driver's licence. The final orders reflect these adjustments and the court’s determinations on the appeal’s grounds.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The total of the terms of imprisonment I have confirmed or varied amounts in relation to the offences that occurred on 5 January 2019, 3 February 2019, 25 April 2019 and 10 September 2019 to 12 months, three weeks and three days. I have reviewed that sentence in accordance with the totality principle. I consider that the decision to make concurrent the notional sentences of imprisonment for two months on each of counts 4 and 5 committed on 10 September 2019 give proper effect to the totality principle particularly when combined with the decision of the Magistrate to convict without further penalty on counts 8 and 9.Conclusion I uphold the appeal on Grounds 1 and 3. As there is no appeal against the decision of the Magistrate to revoke the suspension of the sentence of three months and three weeks, and as the bond is valid, the total sentence to be served is one year, four months, two weeks and three days. I fix the non-parole period at eight months. The sentence and non-parole period are both to commence from 10 September 2019. So as to remove any doubt, I record that I do not disturb the orders made by the Magistrate in relation to costs, the victims of crime levy, court fees and forfeiture of property to the Crown. The appellant has not challenged the fines imposed by the Magistrate and they stand. I also do not disturb the order by the Magistrate that the appellant’s drivers licence is to be suspended for a period of 12 months commencing upon his release from custody.

Ratio Decidendi

Legal Principle Established

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.