DUFFIELD v POLICE

[2011] SASC 4

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

DUFFIELD v POLICE

[2011] SASC 4

Judgment of The Honourable Justice Nyland (ex tempore)

18 January 2011

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PROCEDURE - LIMITATION OF TIME FOR PROSECUTION

Appeal against sentence - appellant pleaded guilty to four counts of theft - suspended sentence of imprisonment of 70 days imposed - complaint not laid within two year limitation period required by s 52(1) Summary Procedure Act 1921 - appeal allowed - convictions imposed by Magistrate quashed.

Summary Procedure Act 1921 s 52(1), referred to.

DUFFIELD v POLICE
[2011] SASC 4

NYLAND J (ex tempore):          

1. In this matter the appellant has appealed against a sentence imposed in the Adelaide Magistrates Court on 1 November 2010. On that occasion the appellant pleaded guilty to four counts of theft (or what are more commonly referred to as shoplifting offences). The offences were committed at Westfield Marion on 5 January 2008. The appellant was detected immediately and all the property was recovered.

2. After allowing a discount for the pleas of guilty the magistrate imposed a sentence of imprisonment of 70 days which was suspended upon the appellant entering into a bond to be of good behaviour for a period of three years.

3. The appellant previously appeared in the Adelaide Magistrates Court on 24 April 2008 with respect to a number of other offences of a similar nature.  On that occasion he was sentenced by another magistrate to be imprisoned for 18 months, with a non-parole period of 12 months.  That sentence was suspended upon him entering into a bond to be of good behaviour for a period of three years. That bond, which is still in force, includes a number of specific conditions which were directed towards the appellant’s rehabilitation.

4. The notice of appeal lodged by the appellant complains that the sentence imposed on 1 November 2010 was manifestly excessive as insufficient weight had been given to the previous sentence which included the bond which I have just mentioned.  There was also a complaint  that the length of the bond imposed in November 2010 was disproportionate to the length of sentence fixed with respect to these offences.  I consider that there is some merit in those grounds but it is unnecessary to resolve them to dispose of this appeal.

5. For reasons which are unclear, the complaint with respect to the present offences was not laid until 6 January 2010, although the offending was alleged to have occurred on 5 January 2008.  Section 52(1) of the Summary Procedure Act  1921 (SPA) requires complaints with respect to charges of this kind to be laid within two years of the date on which the offence was committed.

6. On the hearing of the appeal, the Crown quite properly conceded that the prosecution was not laid within the two year limitation period required by the SPA.   It is therefore out of time and in those circumstances, the convictions should not stand.

7. The appeal is therefore allowed and the convictions imposed by the magistrate on 1 November 2010 are quashed.  

8. There is no order as to costs.