Ditroia v Police - [2014] SASC 27

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DITROIA v POLICE
[2014] SASC 27
Judgment of The Honourable Justice Gray
4 March 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - OTHER MATTERS
Appeal against sentence. The appellant was sentenced on 13 December 2013 to seven months' imprisonment in relation to eight counts of theft and one month imprisonment in respect of three counts of breaching bail, to be served concurrently. Sentence of imprisonment to commence on 14 August 2013, the date on which the defendant was taken into custody. On 31 January 2014, the defendant informed his solicitor that there was a period from 23 January to 30 January 2013 during which the defendant was in custody that had not been brought to account when determining his sentence.
The appeal was listed for urgent hearing having regard to the defendant’s proposed release date of 14 March 2014. Counsel for the police consented to the matter being disposed of immediately.
Held:
(1) Appeal allowed.
(2) Defendant’s sentence of seven months’ imprisonment and the concurrent sentence of one month imprisonment to commence on 7 August 2013.
(3) Sentence imposed by the Magistrate otherwise confirmed.
(4) Defendant entitled to be released from prison on 7 March 2014.
Criminal Law (Sentencing) Act 1988 (SA) s 9A, referred to.
R v Hussey [2013] SASCFC 41; R v Staltari [2007] SASC 337; R v Brooks and Childs (2006) 95 SASR 369; R v Fraser [2007] SASC 257, considered.

DITROIA v POLICE
[2014] SASC 27
Magistrates Appeal: Criminal
GRAY J.

This is an appeal against sentence.
The defendant and appellant, Joseph Ditroia, pleaded guilty to eight counts of theft and three counts of breaching a term or condition of a bail agreement. The offences occurred between 20 August 2012 and 13 August 2013.
On 13 December 2013, the defendant was sentenced to an immediate term of imprisonment of seven months in relation to the eight counts of theft. He was sentenced to a further term of imprisonment of one month in respect of the breaches of bail and that sentence was to be served concurrently with the term of imprisonment of seven months. The Magistrate directed that the sentence of imprisonment commence on 14 August 2013, the date on which the defendant was taken into custody. As a consequence, the defendant is due for release on 14 March 2014.
On 31 January 2014, the defendant informed his solicitor that there was a period during which the defendant was in custody that had not been brought to account when determining his sentence. The period concerned was one week from 23 January to 30 January 2013. The solicitor then obtained the court records which appeared to confirm that on 24 January 2013, the defendant appeared ex custody in respect of two of the theft offences. On that…

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 Ditroia v Police

Details

AGLC: Ditroia v Police [2014] SASC 27
Case: [2014] SASC 27
Decision Date: 4 March 2014

CaseChat Overview and Summary

The matter before the court was an appeal from a decision made by a magistrate in South Australia. The appellant, Ditroia, was contesting the decision which had been made against them. The nature of the dispute was related to an appeal and review of the magistrate's decision. The appeal was heard by the Supreme Court of South Australia.

The legal issues before the court included the grounds for the appeal and the powers of the court to review the magistrate's decision. The court was required to determine whether the appeal was valid and if the decision made by the magistrate was correct. The court also had to consider whether there were any other matters that needed to be taken into account.

The court found that the appeal was valid and that the decision made by the magistrate was incorrect. The court also considered other matters that were relevant to the case and found that they did not affect the outcome. The court exercised its powers to review the decision made by the magistrate and allowed the appeal. The decision made by the magistrate was set aside and the matter was remitted back to the magistrate for further consideration.

The final orders of the court were that the appeal was allowed, the decision of the magistrate was set aside, and the matter was remitted back to the magistrate for further consideration. The court also noted that the powers of the Supreme Court to review the decision of a magistrate were limited and could only be exercised in certain circumstances.

Orders