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 24Magistrates 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…
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- AGLC
- Duff v Police [2015] SASC 24
- Case
- [2015] SASC 24
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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