Doan v POLICE - [2004] SASC 349

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DOAN v POLICE
Judgment of The Honourable Justice Vanstone
9 November 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING
Appeal against sentence for three counts of theft - whether adequate weight given to appellant's background, state of depression and family responsibilities - appeal dismissed.
Criminal Law Consolidation Act 1935, s 134(1); Correctional Services Act 1982; Criminal Law (Sentencing) Act 1988, s 18A, referred to.
Mason-Stuart v The Queen (1993) 61 SASR 204; R v Wiskich (2000) 207 LSJS 43; R v Leach (2003) 85 SASR 139, distinguished.
R v Malesevic (1999) 204 LSJS 32, considered.

DOAN v POLICE
[2004] SASC 349
Magistrates Appeal

VANSTONE J: Kim Loan Doan appeals against a sentence imposed upon her in the Magistrates Court for three counts of theft, contrary to section 134(1) of the Criminal Law Consolidation Act 1935. She pleaded guilty to the three offences which were all committed on 7 May 2004 in Adelaide. The offending was in the nature of shop stealing and involved theft of a number of items from each of three retail outlets, two of which were department stores. The monetary value of the goods stolen was in excess of $5,200. All property was recovered. The maximum penalty for each count is 10 years imprisonment.
The sentencing magistrate utilised s 18A of the Criminal Law (Sentencing) Act 1988 to impose a single sentence of imprisonment, that sentence being one of 9 months and 3 days imprisonment. In fixing that sentence the magistrate said she made a reduction of 20 per cent for the pleas of guilty and made allowance for two weeks spent in custody and also an unspecified allowance for two months on home detention bail.
Two grounds of appeal were advanced. The first complaint was that the sentence was manifestly excessive. It was alleged that too much weight was given to matter of general and personal deterrence and to the appellant’s criminal history and that too little weight was placed on personal matters. It was not asserted that any factual error had been made by the learned magistrate; rather the complaint was that the process must have contained latent error as the sentence was too harsh having regard to all the relevant circumstances.
In support of this ground counsel for the appellant placed particular emphasis on the contents of a report furnished to the magistrate by Mr Richard Balfour, a psychologist. In an extremely lengthy report Mr Balfour documented aspects of the appellant’s life, her state of health and current circumstances.
There is no doubt that the appellant has had a difficult life. She is now 45 years of age and single. She was brought up in Vietnam in challenging circumstances. In 1981 the appellant left Vietnam as a refugee. The boat on which she fled was intercepted by pirates on several occasions and she suffered severely at their hands. She then spent…

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 Doan v POLICE

Details

AGLC: Doan v POLICE [2004] SASC 349
Case: [2004] SASC 349
Decision Date: 9 November 2004

CaseChat Overview and Summary

In the case of Doan v Police, the appellant, Doan, contested the sentence imposed for three counts of theft. The matter was heard and determined in the Magistrates Court. Doan was found guilty of theft and was sentenced to imprisonment. He appealed the sentence, arguing that the sentencing magistrate did not adequately consider his background, his state of depression, and his family responsibilities.

The primary legal issue before the court was whether the sentencing magistrate appropriately weighed the mitigating factors presented by the appellant. The appellant argued that his background, his mental health condition, and his role within his family should have warranted a more lenient sentence. The court was required to assess whether the sentence imposed was appropriate in light of these factors.

In evaluating the appeal, the court noted that the sentencing magistrate had considered the appellant's background, his mental health, and his family responsibilities. However, the court found that while these factors were considered, they did not alter the overall assessment of the seriousness of the offences. The court concluded that the sentence was proportionate to the crimes committed and that the magistrate had appropriately balanced the mitigating factors against the gravity of the offences. Consequently, the appeal was dismissed.

Orders