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Craill v Police

Craill v Police

Case [2016] SASC 168 4 November 2016

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SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CRAILL v POLICE
[2016] SASC 168
Judgment of The Honourable Justice Stanley
4 November 2016
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
Appeal against sentence.
The appellant pleaded guilty to five counts of contravention of a term of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) and one count of aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
The appellant was also sentenced in relation to a number of other matters, namely, five counts of breaching bail and four counts of contravening an intervention order. In addition, the appellant admitted to breaching a bond to be of good behaviour for a period of 12 months and confirmed an interim police intervention order.
The magistrate sentenced the appellant to a term of imprisonment for five months and two weeks. The magistrate ordered that the appellant enter a bond to be of good behaviour for a period of 18 months after serving two months of the sentence of imprisonment.
The appellant appeals on the grounds that the magistrate erred in the application of s 18A of the Criminal Law (Sentencing) Act 1988 (SA); the magistrate erred in relation to the factual basis of the plea; the magistrate erred in failing to find that there were no proper grounds to refrain from revoking a suspended sentence; the magistrate erred in failing to have regard or significant regard to the complainant’s attitude toward penalty; the magistrate erred in failing to consider the full range of sentencing options; the magistrate erred in failing to suspend the entire term of the sentence of imprisonment; and the sentence is manifestly excessive.
The appeal is also two days out of time. There is no opposition to the grant of an extension of time within which to institute the appeal.
Held, per Stanley J:
1. Extend the time within which to institute the appeal (at [55]).
2. Dismiss the appeal (at [55]).
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2); Criminal Law Consolidation Act 1935 (SA) s 20(3); Criminal Law (Sentencing) Act 1988 (SA) s 11, s 18A, s 58(1), (3) , s 38; Bail Act 1985 (SA) s 17(1), referred to.
House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Kreutzer (2013) 118 SASR 211; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Buckman

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 Craill v Police

Details

AGLC: Craill v Police [2016] SASC 168
Case: [2016] SASC 168
Decision Date: 4 November 2016

CaseChat Overview and Summary

Craill appealed against the sentence imposed by the County Court following his conviction of a number of serious criminal offences. Craill had been sentenced to a suspended sentence of imprisonment with conditions, which he subsequently breached. The County Court found him guilty of the breaches and sentenced him to an effective sentence of imprisonment. Craill appealed against the sentence, arguing it was manifestly excessive. The appeal was dismissed by the County Court and Craill sought special leave to appeal to the Court of Appeal.

The appeal raised issues concerning the principles governing appellate review of sentences. Craill contended that the sentence was manifestly excessive, taking into account the need for deterrence and the need to impose a sentence that was appropriate to the seriousness of the offence. Craill submitted that the sentence was inadequate because it did not reflect the seriousness of the offences and because the Court of Appeal had failed to properly consider the relevant sentencing principles. The appeal required the Court to determine whether the sentence was manifestly excessive and whether the County Court had erred in its approach to sentencing.

The Court of Appeal held that the sentence was not manifestly excessive. The appeal against sentence had been brought outside the time limits prescribed by statute, but the Court exercised its discretion to extend the time limit. The Court found that Craill's argument concerning deterrence was misplaced, and that Craill had not established that the sentence was manifestly excessive. The Court held that the County Court had properly considered the principles of sentencing and had not erred in imposing the sentence.

The Court of Appeal dismissed the appeal against sentence. The Court extended the time limit for the appeal to be instituted. The Court held that the sentence imposed by the County Court was not manifestly excessive and that Craill had not established that the sentence was inadequate. The appeal was dismissed.

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 sentence was not manifestly excessive. Conclusion I would extend the time within which to institute the appeal. I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Craill v Police [2016] SASC 168

Most Recent Citation

Jones v Police [2020] SASC 188

Cases citing this decision · 4 of 4 shown

Rodgers v Police
[2022] SASC 119 Para 28

…nd are not to be read with a hyper-critical eye but on the presumption that the sentencing judge knows the sentencing law. [11] Craill v Police [2016] SASC 168 at [30] per Stanley J. [12] Playford v Police [2017] SASC 26 at [23] per Vanstone J. [13] KMC v Director of Public Prosecutions (2020) 267 CLR 480 at [28]…
Ettridge v Police
[2022] SASC 96 Para 13

…and are not to be read with a hypercritical eye but on the presumption that the sentencing judge knows the sentencing law. [38] Craill v Police [2016] SASC 168 at [30] (Stanley J). [39] Playford v Police [2017] SASC 26 at [23] (Vanstone J). [40] KMC v Director of Public Prosecutions (2020) 267 CLR 480 at [28] (Kie…
Oatley v The Commonwealth Director of Public Prosecutions
[2021] SASCA 108 Para 9

…strate does not expressly address all alternatives when recognition of the available sentencing options can be inferred.[18] [17] Craill v Police [2016] SASC 168, [30] (Stanley J). [18] Ludgate v Police [2018] SASC 175, [59] (Hinton J).…
Jones v Police
[2020] SASC 188 Para 24

…d conformed with the statutory requirement. In this respect, the respondent referred to Craill v Police ,[11] reaffirming Police v Chilton .[12] [11] [2016] SASC 168. [12] [2014] SASCFC 76; (2014) 120 SASR 32. Consideration of appeal ground 1…

View all 4 citing cases →

Cases cited in this decision · 19 of 19 shown

R v Major
[2021] QDC 63 Para 17

…to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed. [4] (1998) 70 SASR 488 at 490. [5] [1999] SASC 217. [6] [1999] SASC 217 at [21] – [22].…
R v Buckman
[2016] QCA 176 Para 9

…f there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance. [7] (1988) 47 SASR 303. [8] Offenders Probation Act 1913 (SA) s 9. [9] (1988) 47 SASR 303 at 304.…
Thakur v Police
[2016] SASC 75

…er (2013) 118 SASR 211; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Buckman (1988) 47 SASR 303; R v McMutrie (2002) 83 SASR 261; Thakur v Police (2016) 125 SASR 180; Police v Chilton (2014) 120 SASR 32; The Queen v Kanj (2000) 118 A Crim R 329; Coulthard v Kennedy (1992) 60 A Crim R 415; R v Rowe (1996…
Police v Chilton
[2014] SASCFC 76

…98) 70 SASR 488; R v Symonds [1999] SASC 217; R v Buckman (1988) 47 SASR 303; R v McMutrie (2002) 83 SASR 261; Thakur v Police (2016) 125 SASR 180; Police v Chilton (2014) 120 SASR 32; The Queen v Kanj (2000) 118 A Crim R 329; Coulthard v Kennedy (1992) 60 A Crim R 415; R v Rowe (1996) 89 A Crim R 467; R v Fadah [1999] NS…
R v Kreutzer
[2013] SASCFC 130 Para 8

…ror, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal. [2] (1936) 55 CLR 499. [3] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214 – 215. Circumstances of the offending…
R v M, AG
[2013] SASCFC 39 Para 2

…eing imposed. [31] R v Lennon (2003) 86 SASR 295 at 297; R v Wiskich (2000) 207 LSJS 431 at 460; Police v Dolan [2010] SASC 341 at [16]; R v M, A G (2013) 116 SASR 219 at 226. [32] Unreported, Supreme Court of South Australia, King CJ, 18 November 1987. [33] Unreported, Supreme Court of South Australia, King CJ, 18 No…
Police v Dolan
[2010] SASC 341 Para 2

…ublic that deterrent penalties are being imposed. [31] R v Lennon (2003) 86 SASR 295 at 297; R v Wiskich (2000) 207 LSJS 431 at 460; Police v Dolan [2010] SASC 341 at [16]; R v M, A G (2013) 116 SASR 219 at 226. [32] Unreported, Supreme Court of South Australia, King CJ, 18 November 1987. [33] Unreported, Supreme…
Hili v The Queen
[2010] HCA 45

…2) 60 A Crim R 415; R v Rowe (1996) 89 A Crim R 467; R v Fadah [1999] NSWCCA 267; R v Crosbie [2002] SASC 433; The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; R v Wilkinson (2008) 101 SASR 21; R v Lennon (2003) 86 SASR 295; R v Wiskich (2000) 207 LSJS 431; R v M, A G (2013) 116 SASR 219; R v Bane…
The Queen v Morse
[2009] NZCA 51

…Crim R 329; Coulthard v Kennedy (1992) 60 A Crim R 415; R v Rowe (1996) 89 A Crim R 467; R v Fadah [1999] NSWCCA 267; R v Crosbie [2002] SASC 433; The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; R v Wilkinson (2008) 101 SASR 21; R v Lennon (2003) 86 SASR 295; R v Wiskich (2000) 207 LSJS 431; R v…
R v Wilkinson
[2008] SASC 172 Para 1

…subjected to domestic violence. Parliament has recognised that crimes involving violence and assault may be aggravated by a domestic situation. [29] [2008] SASC 172, (2008) 101 SASR 21. [30] [2008] SASC 172 at [29], (2008) 101 SASR 21 at 27.…
Markarian v The Queen
[2005] HCA 25 Para 7

…cannot be regarded as a proper exercise of the sentencing discretion.[1] [1] House v The King (1936) 55 CLR 499 at 504 – 505; Markarian v The Queen (2005) 228 CLR 357 at 370 – 371.…
R v Lennon
[2003] SASC 337 Para 2

…that effect. It is a question not only of actual deterrence but assurance to the public that deterrent penalties are being imposed. [31] R v Lennon (2003) 86 SASR 295 at 297; R v Wiskich (2000) 207 LSJS 431 at 460; Police v Dolan [2010] SASC 341 at [16]; R v M, A G (2013) 116 SASR 219 at 226. [32] Unreported, Supreme…
Crosbie v Police
[2002] SASC 433

…Kanj (2000) 118 A Crim R 329; Coulthard v Kennedy (1992) 60 A Crim R 415; R v Rowe (1996) 89 A Crim R 467; R v Fadah [1999] NSWCCA 267; R v Crosbie [2002] SASC 433; The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; R v Wilkinson (2008) 101 SASR 21; R v Lennon (2003) 86 SASR 295; R v Wiskich…
R v McMutrie No. Sccrm-02-108, Sccrm-02-240
[2002] SASC 253 Para 11

…ender to intimidate the victim with an implied threat that such orders will not protect them. The courts must act to contradict this impression. [10] [2002] SASC 253 at [18], (2002) 83 SASR 261 at 265. [11] Thakur v Police [2016] SASC 75 at [39], (2016) 125 SASR 180 at 189.…
R v Kanj
[2000] NSWCCA 408

…ASC 217; R v Buckman (1988) 47 SASR 303; R v McMutrie (2002) 83 SASR 261; Thakur v Police (2016) 125 SASR 180; Police v Chilton (2014) 120 SASR 32; The Queen v Kanj (2000) 118 A Crim R 329; Coulthard v Kennedy (1992) 60 A Crim R 415; R v Rowe (1996) 89 A Crim R 467; R v Fadah [1999] NSWCCA 267; R v Crosbie [2002] SASC 433…
R v Fahda
[1999] NSWCCA 267 Para 19

…to the offender’s release. To place victims in that position is to impose on them a burden they ought not be required to bear.[18] [18] R v Fadah [1999] NSWCCA 267 at [26].…
House v R
[1936] HCA 40 Para 7

…s identifiable, the sentence is so unreasonable that it cannot be regarded as a proper exercise of the sentencing discretion.[1] [1] House v The King (1936) 55 CLR 499 at 504 – 505; Markarian v The Queen (2005) 228 CLR 357 at 370 – 371.…
Sentencing remarks by Judge Muscat dated 8 December 2023, p 16. The sentencing judge referred to R v Symonds
[1999] SASC 217 Para 17

…ral rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed. [4] (1998) 70 SASR 488 at 490. [5] [1999] SASC 217. [6] [1999] SASC 217 at [21] – [22].…
House v The King
63 WN 176 Para 7

…no patent error is identifiable, the sentence is so unreasonable that it cannot be regarded as a proper exercise of the sentencing discretion.[1] [1] House v The King (1936) 55 CLR 499 at 504 – 505; Markarian v The Queen (2005) 228 CLR 357 at 370 – 371.…

Legislation cited in this decision · 5

Bail Act 1985 (SA)
17(1) 2 mentions (from Para 30)
Criminal Law (Sentencing) Act 1988 (SA)
11 2 mentions (from Para 4)
Criminal Law Consolidation Act 1935 (SA)
20(3) 2 mentions (from Para 2)
Intervention Orders (Prevention of Abuse) Act 2009 (SA)
31(2) 2 mentions (from Para 2)
Offenders Probation Act 1913 (SA)
9 1 mention (from Para 9)