Davis v Police - [2004] SASC 318

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DAVIS v POLICE
Judgment of The Honourable Justice Anderson
5 October 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING
Appellant serving life imprisonment for murder - whilst in prison, assaulted a prison officer - guilty plea to assault after four days of trial - Magistrate imposed sentence of twelve months - appeal on grounds that sentence manifestly excessive - jurisdictional question as Magistrate had failed to follow s32(5)(b) of the Criminal Law (Sentencing) Act 1988 (SA) - non-parole period required to be extended - whether time that appellant spent in G Division should be taken into consideration in imposing sentence - matters of general deterrence considered - whether Magistrate considered all relevant factors in sentencing - held: sentence imposed was manifestly excessive, reduced to six months, non-parole period extended by twelve weeks.
Criminal Law (Sentencing) Act 1988 (SA) 32(1)(b), 32(5)(b); Correctional Services Act 1982 (SA) 36(2)(d); Magistrates Court Act 1991 (SA) s42(5)(c), referred to.
O'Neil v South Australian Police (unreported, Judgment No.S5636, 16 May 1996); R v Morse (1979) 23 SASR 98, applied.
Musico v Police [2003] SASC 26, not followed.
Higgins v Fricker (1992) 63 A Crim R 473; Heal v Police (1999) 75 SASR 331; R v Shepperbottom (2001) 212 LSJS 486; R v Liddy No.2 (2002) 84 SASR 231; R v Priestley [2002] SASC 438, considered.

DAVIS v POLICE
[2004] SASC 318

ANDERSON J The appellant is currently serving a life sentence of imprisonment for murder. In relation to this matter he pleaded guilty for an assault occasioning actual bodily harm which was upon a prison officer but only after a trial had commenced and proceeded for four days.
He was sentenced by the learned Magistrate to a period of imprisonment for twelve months. The maximum penalty for the offence was a term of imprisonment not exceeding five years.
A question arose at the outset of this hearing about my jurisdiction given that the Magistrate, in error, had failed to follow the provisions of s32(5)(b) of the Criminal Law (Sentencing) Act 1988 (SA) because the appellant was serving a sentence of life imprisonment and the subsection required that the question of whether a non-parole period should be extended, to be referred to the Supreme Court because that court was the court in which the sentence of life imprisonment for murder was imposed.
This question was dealt with by allowing a cross-appeal from the respondent out of time. The appellant did not oppose this late cross-appeal.
I was referred to the decision of O’Neil v South Australian Police (unreported, judgment no.S5636, 16 May 1996) on this point. Set out hereunder is the order which Prior J made as follows:
“I also allow the appeal for the purpose of setting aside the order extending the non-parole…

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 Davis v Police

Details

AGLC: Davis v Police [2004] SASC 318
Case: [2004] SASC 318
Decision Date: 5 October 2004

CaseChat Overview and Summary

The case of Davis v Police involved the appellant, who was already serving a life sentence for murder, being charged with assaulting a prison officer while in custody. The appellant pleaded guilty to the assault after four days of trial, and the Magistrate sentenced him to twelve months imprisonment. The appellant appealed the sentence, arguing that it was manifestly excessive, and that the Magistrate had failed to follow certain statutory requirements when imposing the sentence. The appeal also raised questions about the consideration of the appellant's time spent in a specific division of the prison and the role of general deterrence in sentencing.

The legal issues before the court included whether the sentence was manifestly excessive, whether the Magistrate had failed to follow the statutory requirements for sentencing, and whether the Magistrate had considered all relevant factors, including the appellant's time spent in G Division and the role of general deterrence. The appeal also raised jurisdictional issues regarding the Magistrate's failure to extend the non-parole period of the sentence in accordance with the relevant statute.

The court found that the sentence imposed was indeed manifestly excessive, and reduced the sentence to six months imprisonment. The non-parole period was extended by twelve weeks in accordance with the statutory requirement. The court considered the appellant's time spent in G Division and the role of general deterrence in sentencing, and found that the Magistrate had not adequately considered all relevant factors. The court also found that the Magistrate had failed to extend the non-parole period of the sentence as required by statute.

The final orders of the court were that the sentence imposed by the Magistrate was reduced to six months imprisonment, with a non-parole period of twelve weeks. The court also noted that the Magistrate should have considered the appellant's time spent in G Division and the role of general deterrence in sentencing, and should have extended the non-parole period as required by statute.

Orders