Drohan v Police - [2000] SASC 207

DROHAN v POLICE
[2000] SASC 207

Magistrates Appeal: Criminal

1................ DEBELLE J. (ex tempore) This is an appeal against sentence.

The appellant was convicted on her plea of guilty of break and entering a dwelling and stealing goods contrary to s 170 of the Criminal Law Consolidation Act 1935. The goods had a total value of about $7540. The appellant had stolen the goods in order to exchange them for drugs. She became intoxicated and the goods were stolen from her. The goods were not insured. The likelihood is the goods will never be recovered. The offence occurred on 15 November 1999. On 7 April 2000 a magistrate sentenced the appellant to a period of three months imprisonment. The appellant appeals against the sentence. The only ground of appeal is that the magistrate erred in failing to suspend the term of imprisonment.
The appellant is aged 27 years. She has no prior record. When sentenced she was unemployed. However, in the past she has been employed from time to time. A short time before she was sentenced she had been retrenched from her then employment. For approximately 10 years the appellant has been a regular user of amphetamines. She has been able to pay for the drugs from her savings and by pawning assets. She has not offended in any way for the purpose of providing funds to finance the use of drugs. Six months before the offence, her marriage of four years had broken down irretrievably. The appellant has two children aged ten years and five years, each by a different father. Each child lives with the natural father. The appellant had access to each child every second weekend. It was put to the magistrate that the appellant is concerned that an immediate custodial sentence will sever her relationship with the children. She is also concerned the sentence may be used by one, or both, of the fathers as a means to end arrangements as to access.
Before sentencing the appellant the magistrate had adjourned the matter to enable the victims of the offence to attend before the court. I make no criticism at all of that practice. There are obvious advantages in it. It makes the defendant confront those who are the victims of the crime. However, the magistrate went a little further. She invited each of the two victims to express their view as to the appropriate penalty. Both said they believed that the appellant should serve a period of imprisonment. I think it was undesirable for the magistrate to invite the victims to express a view as to penalty. Victims not skilled in the sentencing process will not usually have regard to all of the factors bearing upon the proper exercise of the sentencing discretion. The fact that the magistrate invited those views raises the question whether the magistrate believed it was necessary to impose a period of imprisonment because that view had been expressed by the victims. The magistrate should not invite victims…

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 Drohan v Police

Details

AGLC: Drohan v Police [2000] SASC 207
Case: [2000] SASC 207
Decision Date: 14 June 2000

CaseChat Overview and Summary

In the matter of Drohan v Police, the appellant was convicted of breaking and entering a dwelling and stealing goods, and she appealed against the sentence imposed by the magistrate. The court was required to determine whether the magistrate erred in failing to suspend the term of imprisonment. The court found that the magistrate had erred in not considering the range of penalties suggested in Halse and had not adequately considered the rehabilitation of the offender. The court also found that the sentence imposed by the magistrate was extremely lenient and outside the proper exercise of the sentencing discretion. The court concluded that the sentence should be set aside and replaced with a suspended sentence of imprisonment, with conditions including good behaviour and compliance with directions from a probation officer regarding treatment for drug addiction.

The court found that the magistrate had not correctly approached the sentencing process. The magistrate had determined that immediate imprisonment was necessary but had not considered whether it was appropriate to suspend the sentence. The court found that the magistrate had not adequately considered the range of penalties suggested in Halse and had not had regard to the rehabilitation of the offender. The court also found that the sentence imposed by the magistrate was extremely lenient and outside the proper exercise of the sentencing discretion. The court concluded that the sentence should be set aside and replaced with a suspended sentence of imprisonment, with conditions including good behaviour and compliance with directions from a probation officer regarding treatment for drug addiction. The court did not increase the sentence as there was no cross-appeal by the complainant as to the inadequacy of the sentence. The court also did not remit the matter to the magistrate for further sentencing as it would be inconsistent with the principles expressed in Heale and expose the appellant to double jeopardy of sentence.

Orders