Cherry v Police - [2023] SASC 158

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
CHERRY v POLICE
[2023] SASC 158
Judgment of the Honourable Justice Kimber
2 November 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant was sentenced on 11 May 2023 for an offence of Breach of Bail contrary to s 17(1) of the Bail Act 1985 (SA). The appellant cut off his electronic monitoring device. The Magistrate identified a starting point of nine months’ imprisonment and after a reduction of 40 per cent for the guilty plea, imposed a sentence of five months and 12 days. This sentence was made cumulative upon other sentences imposed at the same time and upon unexpired parole.
The appellant appeals the sentence of five months and 12 days on the basis of a failure to give adequate reasons with respect to the totality principle and manifest excess. The appeal is out of time.
Held:
1.An extension of time is granted.
2.A review of the sentencing remarks does not suggest any error with respect to adequate reasons and the totality principle.

3. The appeal is allowed on the basis the sentence was manifestly excessive.
4. The appellant is resentenced to three months.
5.The above sentence is cumulative upon other sentences imposed by the Magistrate on 11 May 2023 and cumulative upon unexpired parole.
6.The effective total head sentence, including unexpired parole, is three years and four days. With respect to that effective total head sentence, a non-parole period of 18 months is fixed.

7. The effective total head sentence and non-parole period commence on 6 January 2023.
Bail Act 1985 (SA) s 17(1), referred to.
R v Lutz (2014) 121 SASR 144; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; Hackett v R [2021] SASCA 32, applied.

CHERRY v POLICE
[2023] SASC 158
Magistrates Appeal: Criminal
KIMBER J:

This is an appeal against a sentence imposed by a Magistrate for breach of bail contrary to s 17(1) of the Bail Act 1985 (SA) (the offence).
The offence was one of several offences for which the appellant was sentenced by the Magistrate on 11 May 2023. The maximum penalty for the offence was a fine of $10 000 or imprisonment for two years. The Magistrate identified a starting point of nine months for the offence and imposed a sentence of five months and 12 days after a reduction of 40 per cent for the guilty plea. The Magistrate accumulated the sentences he imposed, resulting in a total sentence of one year, three months and nine days. That sentence was made cumulative upon unexpired parole of one year, 11 months and seven days, with the outcome of a total head sentence of three years, two months and 16 days. A non‑parole period of 20 months was fixed. Both the head sentence and the non‑parole period were ordered to commence on 6…

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 Cherry v Police

Details

AGLC: Cherry v Police [2023] SASC 158
Case: [2023] SASC 158
Decision Date: 2 November 2023

CaseChat Overview and Summary

The appellant, Cherry, appealed against his sentence of five months and 12 days, reduced by 40 per cent, imposed by a Magistrate, arguing that the sentence was manifestly excessive. The case was heard in the Supreme Court of South Australia. The primary legal issue was whether the sentence imposed by the Magistrate was manifestly excessive, taking into account the appellant's history of offending and the circumstances of the current offence. Additionally, the court considered whether the Magistrate failed to provide adequate reasons for not applying the totality principle.

The court acknowledged the appellant's history of offending, particularly breaches of bail, but noted that those offences had been committed over a decade ago and had not previously resulted in imprisonment. The court found that the sentence was outside the permissible range of sentences available for the offence and the offender. The court recognised the need for general and personal deterrence but concluded that the sentence was manifestly excessive given the circumstances of the offence and the appellant's history. The appeal was allowed on the ground that the sentence was manifestly excessive.

The court observed that while the Magistrate had considered the principle of totality, it was not necessary to apply it in this case. Since the appeal on the manifestly excessive sentence was upheld, it was not necessary to address the second ground of appeal. The appellant must be re-sentenced.

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

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Ratio Decidendi

Legal Principle Established

The appellant submitted the sentence of five months and 12 days, after a reduction of 40 per cent, is manifestly excessive in circumstances where: the offence was committed for the reason put in submissions; and the Magistrate acknowledged the appellant had accepted that he found himself getting into trouble when he associated with drug users and understood that he needed to show that he could do well when not under the influence of drugs. Consideration The contention a sentence is manifestly excessive is a complaint the sentence was unreasonable or plainly unjust such that it can be inferred the outcome has been attended by error.[2] It is not enough that the appellate court would have imposed a different sentence.[3] Rather, the sentence must be ‘outside the permissible range of sentences for the offender and the offence’.[4] [2] House v The King (1936) 55 CLR 499, 504–505.[3] Ibid.[4] Kentwell v The Queen (2014) 252 CLR 601, 615 [35]. The imposition of a just sentence which takes account of all relevant considerations is an exercise of judicial discretion. Sentencing Judges and Magistrates ‘are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’.[5] [5] Hackett v R [2021] SASCA 32, [8]. In submitting the sentence was not manifestly excessive, the respondent emphasised the above principles. The respondent also emphasised that the removal of a home detention device should be regarded as a serious example of the offence; the offence was committed only two weeks after entry into the bail agreement; the appellant remained at large for almost four months and did not surrender; the importance of general and personal deterrence; and that the appellant was on parole. Notwithstanding the force of the submissions of the respondent, the absence of any sentencing standard for the offence, and that the Magistrate had a broad discretion, I am satisfied the sentence was manifestly excessive. It must be accepted that the appellant had a poor history of breaches of bail and so the basis for leniency was reduced. However, apart from the other breach of bail dealt with by the Magistrate, those offences had been committed more than a decade ago and, other than time spent in custody, had not attracted a sentence of imprisonment. I find that the sentence imposed was outside the permissible range of sentences available to be imposed for this offence and this offender. I allow the appeal on Ground 1. It will be necessary to re-sentence the appellant. Ground 2—Failure to give adequate reasons for not applying the totality principle As the appellant must be re-sentenced, it is not strictly necessary to consider Ground 2. Nonetheless, I make the following observations. First, the sentencing remarks make plain that the Magistrate both understood the principle of totality and considered whether it should be applied. Second, in this case, reference to the totality principle was not necessary. Re-sentencing