Duff v Police - [2015] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DUFF v POLICE
[2015] SASC 24
Reasons for Decision of The Honourable Justice Nicholson
24 February 2015
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL
The appellant pleaded guilty to, and was convicted of, one count of theft contrary to section 134 of the Criminal Law Consolidation Act 1935, and was sentenced to two months imprisonment for that offending. However, the offending constituted a breach of a good behaviour bond that had been imposed for previous offending for which the appellant had been given a suspended sentence of five months and two weeks imprisonment. The Magistrate revoked the suspension, but exercised the discretion available to him under subsection 58(4) of the Criminal Law (Sentencing) Act 1988 to reduce the sentence of imprisonment to two months. That left the appellant, in total, with a sentence of imprisonment for four months.
The appellant appeals on the basis that the Magistrate erred in finding that the substantive offending was not “trivial”, and in failing to find proper grounds to excuse the breach of bond.
Held: The Appeal is dismissed. No error identified as to the Magistrate’s finding that the appellant’s offending was not, in all the circumstances, “trivial”, or as to the finding that no proper grounds exist for excusing the appellant’s breach of bond.
Criminal Law Consolidation 1935 s134; Criminal Law (Sentencing) Act 1988 s18A, s38, s58, s134; Offenders Probation Act 1913 s9, referred to.
R v Scott [2014] SASCFC 131; Walden v Hensler [1987] HCA 54, (1987) 163 CLR 561; Siviour-Ashman v Police [2003] SASC 29, (2003) 85 SASR 23; Mancini v Vallelonga (1981) 28 SASR 236; Verran v Roberts [1938] SASR 256; R v Buckman (1988) 47 SASR 303; House v The King [1936] HCA 40, (1936) 55 CLR 499; R v Pham [2003] SASC 386, considered.

DUFF v POLICE
[2015] SASC 24
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This in an appeal from a sentencing outcome ordered by a Magistrate after the appellant pleaded guilty to, and was convicted of, the offence of theft (in the nature of receiving stolen property) contrary to section 134 of the Criminal Law Consolidation 1935.
The appellant was sentenced to two months imprisonment after an allowance for the guilty plea. However, by committing the offence of theft the appellant breached the terms of a bond to be of good behaviour which supported a suspended prison sentence of five months and two weeks on account of previous offending. The Magistrate revoked the suspension and ordered the prison term to…

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 Duff v Police

Details

AGLC: Duff v Police [2015] SASC 24
Case: [2015] SASC 24
Decision Date: 24 February 2015

CaseChat Overview and Summary

The appellant, in the case of Duff v Police, was convicted of theft and appealed against the sentence imposed by the Magistrates Court. The appellant's history with the police was extensive, dating back to when he was 14 years old, and primarily included theft and other dishonesty-based offences. The court was tasked with determining the appropriate sentence for the appellant's latest theft offence and whether the suspended sentence imposed earlier should be revoked.

The key legal issues for the court were the nature and gravity of the offence, the appellant's history of offending, and whether the suspended sentence should be revoked. The court had to consider the relevant factors, such as the appellant's age, his previous convictions, and the circumstances of the current offence. The court also had to assess whether the appellant's actions demonstrated a continuing pattern of behaviour, and whether the imposed sentence was appropriate.

The court held that the appellant's history of offending and the circumstances of the current offence demonstrated a continuing pattern of behaviour. The court found that the appellant's actions were serious, and that the sentence imposed by the Magistrate was appropriate. The court also found that there were no grounds to interfere with the Magistrate's decision to revoke the suspended sentence. The court held that the appellant's breach of the bond conditions and the commission of a further offence demonstrated a lack of rehabilitation and a need for a custodial sentence.

The court dismissed the appeal and affirmed the sentence imposed by the Magistrate. The appellant was sentenced to imprisonment for a period of five months and two weeks, suspended upon the appellant agreeing to enter into a bond to be of good behaviour for 18 months. The court also ordered that the suspended sentence be revoked and that the appellant serve a period of imprisonment for a period of five months and two weeks.

Orders

Orders of the court

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Background

Background to the litigation

As is canvassed briefly below, the appellant has some history with the police. It was his case, on appeal, that he only hid the items because he was concerned that the police would not believe he had simply found them. He was concerned that they would accuse him of, and perhaps charge him with, the breaking and entering (serious criminal trespass) of the neighbour’s property. On any analysis, the offence of theft, as now defined under section 134 of the Sentencing Act, was committed. The Magistrate made the following finding which was open on the evidence and is a finding with which I agree.[2] You picked up the laptop and ipad that he had dropped and believed that they could have been stolen at the time. You returned to your girlfriend’s premises, and you heard when you were at those premises that a neighbour’s house had been broken into and laptop and Ipad were stolen and you hid the laptop and Ipad. By your plea you acknowledge that you formed the intention to permanently deprive the owner of that laptop and Ipad.[2] Police v Duff, MCCHB-14-675, MCCHB-14-574, Remarks on Penalty, 10 December 2014 at [2].Background circumstances The appellant is 21 years of age. His offender history dates back to when he was 14 years old and primarily includes theft and other dishonesty based offences. In the Magistrates Court on 25 July 2013, the appellant pleaded guilty to and was convicted of a number of offences. These were committed when the appellant was no longer a youth. The offences included one count of assault committed on 13 December 2012, two counts of failure to comply with a bail agreement and two counts of theft committed in January 2013, one count of theft and one of unlawful possession committed on 29 April 2013 and a further count of theft committed on 10 May 2013. The assault was objectively serious. It involved the appellant approaching another young man sitting in a shopping centre and punching him in the face with a closed fist without provocation. The various thefts were each relatively minor in the sense that they involved property of low value and were opportunistic. Nevertheless, the repeated nature of this conduct is plainly of concern and discloses a continuing pattern of behaviour as an adult similar to that by the appellant as a youth. The Magistrate dealt with these matters pursuant to section 18A of the Sentencing Act and imposed the one penalty of imprisonment for a period of five months and two weeks, suspended upon the appellant agreeing to enter into a bond to be of good behaviour for 18 months. However, it was only some six months or so later that the appellant committed the theft of the laptop and the iPad. As it happens, it was the same Magistrate who was called upon to sentence the appellant for this offence and to consider whether or not to revoke the suspended prison sentence that he had earlier ordered. The Magistrate also had to sentence the appellant for being in unlawful possession of a midi bike. However, this offence was committed before the bond was entered into. The Magistrate, in the circumstances, entered a conviction but no further penalty.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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