Ettridge v Police

Case [2022] SASC 96

Supreme Court of South Australia

(Magistrates Appeal: Criminal)

ETTRIDGE v POLICE

[2022] SASC 96

Judgment of the Honourable Justice McDonald 

2 September 2022

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS

Appeal against a sentence imposed by a Magistrate.

On 16 November 2021, the appellant was sentenced for two counts of aggravated assault, three counts of assault of a prescribed emergency worker, three counts of property damage, two counts of disorderly behaviour, assault and breach of bail committed across a period of approximately one month in late 2020 for which he had entered pleas of guilty. After imposing separate sentences, the Magistrate made a reduction on account of proportionality and totality and ultimately imposed a single head sentence for all of the offending of 12 months imprisonment. A non-parole period of four months and 27 days was fixed. Whilst there are five grounds of appeal, they all underpin a complaint that the Magistrate erred in not exercising his discretion to suspend the term of imprisonment or order it be served on home detention.

The respondent argues that the sentence was not manifestly excessive, nor did the Magistrate make the alleged process errors, and the appeal should be dismissed.

Held:

1.In light of the seriousness of the offending and having regard to all of the appellant’s personal circumstances, it cannot be said that the imposition of a term of immediate imprisonment was outside of the permissible range of sentences available to the Magistrate.

2.      None of the grounds of appeal have been established.

3.      The appeal is dismissed.

Bail Act 1985 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) s 20(3), s 20AA(3), s 85(3); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 13; Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) s 11, s 29, s 69, s 71; Summary Offences Act 1953 (SA) s 7(1)(a); Supreme Court Criminal Rules 2014 (SA) r 104V(1)(a), referred to.

Teasdale v Police [2022] SASC 64; R v Dell & Dell (2016) 126 SASR 571; Pateras v The Queen [2021] SASCA 107, applied.

Dinsdale v The Queen (2000) 202 CLR 321; Lowndes v The Queen (1999) 195 CLR 665; R v Mark [2019] SASCFC 48; The Queen v Morse (1979) 23 SASR 98; Wittwer v Police [2004] SASC 226, discussed.

ETTRIDGE v POLICE
[2022] SASC 96

Magistrates Appeal: Criminal

McDONALD J.

Introduction

  1. This is an appeal against a sentence imposed in the Magistrates Court on 16 November 2021.  The appellant pleaded guilty to two counts of aggravated assault,[1] three counts of assault of a prescribed emergency worker,[2] three counts of property damage,[3] two counts of disorderly behaviour,[4] assault,[5] and breach of bail.[6]  He received a head sentence of 12 months with a “lower than usual”[7] non-parole period of four months and 27 days.  These offences involved five victims and occurred in…

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Ettridge v Police [2022] SASC 96
Case
[2022] SASC 96
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CaseChat Overview and Summary

Ettridge brought an appeal against their sentence to the Supreme Court of South Australia, after being convicted by a Magistrate of an offence under the Criminal Law Consolidation Act 1935 (SA). The central issue in this appeal was whether the Magistrate had made an arithmetical error in calculating the sentence, and if this error was material enough to warrant a new trial or appeal against sentence. The appellant argued that the Magistrate had intended to impose a sentence of 12 months imprisonment, but due to an arithmetical error, the sentence was calculated as 14 months. The appellant submitted that this error was material, as it led to a sentence that was outside the permissible range.

The Supreme Court found that the arithmetical error was not material, as the Magistrate's true intention was to impose a sentence of 12 months imprisonment. The court noted that to have reduced the sentence any further would have deprived the appellant of a non-parole period, resulting in a paradoxical outcome of the appellant spending longer in custody. The court held that the seriousness of the offending and the appellant's personal circumstances meant that the sentence imposed was within the permissible range and was appropriate.

In conclusion, the appeal was dismissed as none of the grounds of appeal were established. The Supreme Court found that the Magistrate's sentence was appropriate, and the arithmetical error did not impact the overall outcome. The court emphasised the importance of considering the true intention of the Magistrate when calculating a sentence and the need to ensure that the sentence imposed is within the permissible range.

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

A reading of the Magistrate’s remarks in their entirety clearly demonstrates that the arithmetical error was not material. The “true intention”[47] of the Magistrate was to reduce the total period of imprisonment to 12 months. To have reduced the sentence any further would have had the effect of depriving the appellant of a non-parole period with the paradoxical outcome that he would be required to spend longer in custody. [47] See R v Singh (2018) 132 SASR 1.Conclusion In light of the seriousness of the offending and having regard to all of the appellant’s personal circumstances, it cannot be said that the imposition of a term of immediate imprisonment of this duration was outside of the permissible range of sentences available to the Magistrate. In my view it was in fact an appropriate, if not merciful, sentence. None of the grounds of appeal have been established. Order The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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