Curtis v POLICE

[2016] SASC 198

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

CURTIS v POLICE

[2016] SASC 198

Judgment of The Honourable Chief Justice Kourakis (ex tempore)

21 December 2016

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - PROCEDURE - JURISDICTION - GENERALLY

Appeal against sentence.

The appellant was originally charged with one count of larceny; two counts of unlawfully on premises, aggravated assault and aggravated theft; and one count of breach of bail. The appellant pleaded guilty to all counts.

The Magistrate imposed a sentence of two years, eight months and two weeks, with a non-parole period of one year and eight months.

The issue on appeal was whether the Magistrate had jurisdiction to sentence the appellant. The appellant argued, and the respondent conceded, that the appellant’s conduct in holding a baseball bat and threatening the victim meant that he had committed an offence of violence over which the Magistrate did not have jurisdiction to sentence according to the Summary Procedure Act 1921 (SA).

Held, allowing the appeal:

1.       Appeal allowed.

2.       Sentence set aside.

3.       Matters remitted to the Magistrates Court for hearing.

Criminal Law Sentencing Act 1988 (SA) s 18A; Summary Procedure Act 1921 (SA) s 4, s 5(3), referred to.

CURTIS v POLICE
[2016] SASC 198

Magistrates Appeal:  Criminal

1. KOURAKIS CJ (extempore):         This is an appeal against a sentence of two years eight months and two weeks with a non-parole period of one year and eight months imposed in the Magistrates Court on three instances of offending.

2. The first in time was a larceny of Nike runners committed on 3 December 2015.  Next were offences of unlawfully on premises, aggravated assault and two aggravated offences of theft committed on 6 May 2016.  The third was an offence of failing to comply with a home detention bail agreement by removing the bracelet and absconding committed on 23 May 2016.

3. The basis of the plea on the 6 May offences was negotiated over time and resulted in the filing of a fresh information on 14 September 2016 just two weeks before the appellant was sentenced.  The prosecutor put together the prosecution allegations from the apprehension report and other documents which reflected the results of the negotiations. 

4. The circumstances of the 6 May 2016 offences were complicated.  The offences were committed by the defendant in company with several others.  The Magistrate was informed that the assault and thefts were perpetrated by the other men but that the appellant Mr Curtis was at all times present carrying a baseball bat.  It is alleged that the appellant gave orders in threatening tones to the victim of the theft, T, whilst holding the baseball bat.

5. The Magistrate sentenced on the basis that the appellant did threaten T whilst holding the baseball bat.  That created a jurisdictional difficulty.  On the facts as alleged and found the aggravated theft offences were offences of violence as defined by s 4 of the Summary Procedure Act 1921 (SA) (SPA).   By reason of s 5(3) of the SPA the offences were major indictable offences and the Magistrates Court did not have jurisdiction over them.

6. The aggravated theft offences being included in the single sentence imposed pursuant to s 18A of the Criminal Law Sentencing Act 1988 (SA), the sentences imposed on all offences must be set aside.

7. The error is not one that can be corrected by me because this is an appeal from an order made without jurisdiction.  On the findings of the Magistrate, the aggravated theft offences must be committed to the District Court.   The appeal must therefore be allowed and remitted to the Magistrates Court.  I observe that the factual basis on which the Magistrate was asked to sentence seems somewhat cobbled together and artificial.  It will require close attention on remittal.  The Magistrates Court will require greater assistance as to the precise facts on which the matter is to proceed.  It may be that those facts can be agreed or there may need to be a disputed facts hearing.

8. I have been asked to make an order expressly remitting the matter for hearing before another Magistrate, I decline to do so.  I acknowledge that the Magistrate who sentenced Mr Curtis may need to recuse himself if the matter is listed before him.  However, much depends on whether facts are agreed or the circumstances there is a disputed facts hearing.  I therefore decline to make an order constraining the way in which the Magistrates Court lists the matter.

9. The orders of the Court are:

   1      Appeal allowed. 

   2      Sentence set aside.

   3      Matters remitted to the Magistrates Court for hearing.