Clavell v Police - [2014] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CLAVELL v POLICE
[2014] SASC 142
Judgment of The Honourable Justice Gray
24 September 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Appeal against sentence. The defendant was convicted following his pleas of guilty to four counts of driving unauthorised, one count of driving at an excess speed, one count of driving with a prescribed drug in his oral fluid, one count of possessing a prescription drug without authority or reasonable excuse, two counts of assault and two counts of assault causing harm. The offences were committed between August 2013 and January 2014. The defendant was sentenced in the Magistrates Court to a total sentence of imprisonment of three years and eight months, with a non-parole period of two years and two months.
Whether the overall head sentence and non-parole period were manifestly excessive. Whether the Magistrate erred in failing to have regard to whether the four offences of assault were part of a course of conduct so as to warrant the imposition of concurrent or partially concurrent sentences. Whether the Magistrate erred in utilising section 18A of the Criminal Law (Sentencing) Act 1988 (SA) only in regard to two of the offences of assault. Whether the Magistrate erred in sentencing the defendant on the basis that he was aware at the time of his offending that his steroid use made him aggressive. Whether the Magistrate erred in providing inadequate reasons for the sentences imposed. Whether the Magistrate erred in mischaracterising two of the offences of driving unauthorised as offences of driving unlicensed. Whether the Magistrate erred in making a reduction to the head sentence on account of time spent in custody, rather than backdating the sentence to the time at which the defendant was taken into custody.
Held:
1. The overall sentence and non-parole period imposed by the Magistrate can be characterised as being particularly merciful and at the lower end of the range of appropriate sentences, having regard to the unprovoked and recurring nature of the offending and the impacts upon the victims. It is not appropriate to interfere with the sentence.
2. The four offences of assault should be properly characterised as amounting to separate incursions into criminal conduct.
3. Although the Magistrate’s approach in applying section 18A of the Sentencing Act was unusual, no error of law has been demonstrated.
4. The Magistrate when sentencing did not act on any misunderstanding of fact regarding the defendant’s steroid use.
5. It was within the sentencing discretion of the Magistrate to commence with the same notional starting point in relation to the offence of assault committed on 23 December 2013 and the offence of assault causing harm…

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

AGLC: Clavell v Police [2014] SASC 142
Case: [2014] SASC 142
Decision Date: 24 September 2014

CaseChat Overview and Summary

The case of Clavell v Police involves an appeal against the sentence imposed by the Magistrate. The defendant was convicted of two separate offences: an assault and two instances of driving without authority. The appeal focused on the sentence's adequacy and whether it was manifestly excessive. The Court of Appeal examined the principles of sentencing, particularly the relevance of time spent in custody prior to sentencing.

The court needed to decide whether the sentence imposed by the Magistrate was appropriate in the context of the offences committed. Key issues included whether the sentences for the two driving offences should be served concurrently and whether the Magistrate should have taken into account the time the defendant spent in custody prior to sentencing. The court also had to consider if the overall sentence was excessive or inadequate, particularly in light of the principle that courts should not give strict mathematical credit for pre-sentencing custody.

The Court of Appeal allowed the appeal for the limited purpose of ordering that the sentences for the two driving offences be served concurrently. The court confirmed that there was no requirement under section 30(2) of the Sentencing Act for the Magistrate to strictly calculate credit for time spent in custody. The court upheld the Magistrate's discretion to account for this period in a manner it deemed appropriate. The appeal court then reduced the total head sentence by four months to reflect the time spent in custody, resulting in a total sentence of three years and three months, with a non-parole period of two years and one month. The court confirmed the Magistrate's orders in all other respects.

The final orders of the Court of Appeal were to allow the appeal in part, ordering that the sentences for the two driving offences be served concurrently. The total sentence imposed was reduced to three years and three months, with a non-parole period of two years and one month. The sentence was to commence on the day of the original sentencing by the Magistrate, 26 May 2014. The court's decision reaffirmed the principle that courts have discretion in accounting for pre-sentencing custody and confirmed the overall sentence as appropriate.

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

GRAY J

In relation to the additional four days of custody for which credit was not given, it is to be noted that nothing in the text of section 30(2) of the Sentencing Act requires a sentencing Judge to take into account time spent in custody when fixing either the head sentence or the non-parole period. In Malesevic, Doyle CJ considered the ambit of section 30(2) and observed:[5]The language of the subsection is permissive and enables the court to "have regard" to the period spent in custody. It does not require that there be a strict mathematical calculation. … It was therefore within the Magistrate’s discretion to give credit for only four months on account of time spent in custody. [5] R v Malesevic (1999) 204 LSJS 32, [41].Conclusion The appeal is allowed for the limited purpose of ordering that the sentences imposed in respect of the two offences of driving unauthorised on 3 and 8 October 2013 be served concurrently. Accordingly, the defendant faces sentences of imprisonment for a total period of three years and seven months. I make the same reduction of four months on account of time spent in custody as did the Magistrate, leading to a total head sentence of three years and three months. In relation to this total head sentence, I fix a non-parole period of two years and one month. The orders of the Magistrate are otherwise confirmed. The sentence is to commence on 26 May 2014 the day on which the defendant was sentenced by the Magistrate.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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