DONNELLY v Police - [2014] SASC 193

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 193
Magistrates 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.…

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 DONNELLY v Police

Details

AGLC: DONNELLY v Police [2014] SASC 193
Case: [2014] SASC 193
Decision Date: 17 December 2014

CaseChat Overview and Summary

In Donnelly v Police, the appellant appealed against the sentencing decision made by a Magistrates' Court in South Australia. The appellant was convicted of assault and challenged the decision of the Magistrate to record a conviction despite the circumstances of the case. The appeal was brought to the Supreme Court of South Australia, which considered whether the Magistrate's decision to record a conviction was an error of law or an exercise of discretion that warranted interference.

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In all of the circumstances of this case, there were good reasons to decline to exercise the discretion not to record a conviction. Another Magistrate may have acceded to the appellant’s request because of the appellant’s prior good character and early contrition. However, it is not a sufficient ground, on which to set aside an exercise of the sentencing discretion, that the sentencing court gave relevant considerations more or less weight than another sentencing court may have given them. It was open to the Magistrate to decline to exercise her discretion not to record a conviction.Conclusion I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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