SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DONNELLY v POLICE
[2014] SASC 193
Reasons for Decision of The Honourable Chief Justice Kourakis
17 December 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
The appellant was drinking alcohol at the Backpackers Hotel in Glenelg one evening, after drinking for most of that day. Upon leaving, the appellant’s girlfriend pointed out a man who had allegedly splashed her with his urine whilst urinating. The appellant approached the man and punched him in the face. The victim fell to the ground and lost consciousness, sustaining a large gash to the back of his skull, which bled heavily and required 22 staples.
The appellant was convicted and sentenced to seven months imprisonment, suspended on the condition of a two year good behaviour bond. The appellant appealed against his sentence. Whether the Magistrate sentenced on an incorrect factual basis. Whether the Magistrate erred in recording a conviction. Whether the sentence was manifestly excessive.
Held (dismissing the appeal):
The factual errors made by the Magistrate are immaterial (at [3] & [24]), and there was no failure to accord procedural fairness (at [29]).
The appellant's contentions that the Magistrate erred in recording a conviction and that the sentence was manifestly excessive is rejected. The need for deterrence of offences of this kind means that less weight can be accorded to the personal circumstances of the offender (at [4] & [31]).
Criminal Law (Sentencing) Act 1988 (SA) s8, referred to.
R v Lutze [2014] SASCFC 134., applied.
WORDS AND PHRASES CONSIDERED/DEFINED
"Manifestly excessive", "Contrition", "Undue weight - insufficient weight"
DONNELLY v POLICE
[2014] SASC 193Magistrates Appeal: Criminal
KOURAKIS CJ: On 14 August 2014, on the morning of the date fixed for his trial, the appellant pleaded guilty to the offence of assault causing harm. The appellant had indicated a guilty plea a week earlier. On 18 August 2014, the appellant was convicted and sentenced to seven months imprisonment, which was suspended on the condition that he enter into a bond to be of good behaviour for two years in the amount of $1,000.
The appellant appeals against his sentence on the grounds that:
1.The Magistrate sentenced on an incorrect factual basis.
2.The Magistrate erred in recording a conviction.
3.The sentence was manifestly excessive.
I foreshadow that I accept that the Magistrate made two factual errors in her sentencing remarks, but I find that they are immaterial. I reject the contentions that the Magistrate erred in recording a conviction and that the sentence was manifestly excessive.
There is strong community concern about the nature and extent of street violence perpetrated by intoxicated offenders.…
Continue reading DONNELLY v Police
Sign in free to access the full text
- AGLC
- DONNELLY v Police [2014] SASC 193
- Case
- [2014] SASC 193
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Magistrate's decision to record a conviction was an improper exercise of discretion. Specifically, the court needed to assess whether the sentence imposed was manifestly excessive or inadequate and if the Magistrate had considered relevant factors in exercising her discretion. The court also needed to consider whether the appellant's prior good character and early contrition were sufficient grounds to set aside the Magistrate's decision.
The Supreme Court found that the Magistrate had exercised her discretion appropriately, taking into account all relevant factors. The court held that the appellant's prior good character and early contrition were not sufficient grounds to interfere with the Magistrate's decision. The court emphasised that another Magistrate may have given more weight to these factors, but that did not mean that the original Magistrate's decision was an improper exercise of discretion. The court also noted that it was open to the Magistrate to decline to exercise her discretion not to record a conviction.
The Supreme Court dismissed the appeal, holding that the Magistrate's decision to record a conviction was not an error of law or an improper exercise of discretion. The court found that the sentence imposed was not manifestly excessive or inadequate, and that the Magistrate had considered all relevant factors in making her decision. The court held that it was not appropriate to interfere with the Magistrate's decision, and that the appeal should be dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.