F, Ma v Police - [2015] SASC 10

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
F, MA v POLICE
[2015] SASC 10
Judgment of The Honourable Justice Vanstone
3 February 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES
Appeal against penalty imposed in the Youth Court - appellant charged with two counts of aggravated assault arising from the same incident - appellant pleaded guilty to count 1 and was sentenced by the first magistrate - count 2 came before a different magistrate for trial - appellant pleaded guilty to count 2 during trial - whether magistrate erred by refusing to refer the matter back to the first magistrate - whether sentence manifestly excessive.
Held: appeal dismissed.
Young Offenders Act 1993 (SA) s 3, s 23(4), s 32; Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
R v QVT (2003) 87 SASR 378; A, MC v Police (2008) 102 SASR 151; R v McInerney (1986) 42 SASR 111, considered.

F, MA v POLICE
[2015] SASC 10
Magistrates Appeal: Criminal

VANSTONE J: This is an appeal against a sentence imposed in the Youth Court.
The appellant was charged with two counts of aggravated assault. They were aggravated by the fact that they were committed in company with one or more other persons. She was 12 years and 10 months old at the time of the offending.
The appellant pleaded guilty to the first count, as well as to eight unrelated offences, and was sentenced in October 2014 by a magistrate (the first magistrate). A suspended term of detention was imposed.
The appellant contested count 2 and it came before a different magistrate for trial during the following month. The appellant pleaded guilty during the first day of trial. The magistrate imposed a sentence of detention for one month, which was suspended upon the appellant entering into a bond to be of good behaviour for nine months. No conviction was recorded. The penalty imposed for count 2 is the subject of this appeal. The appellant argues that the magistrate erred in three respects, namely by failing to refer count 2 back to the first magistrate for sentence, by remanding the appellant in custody for one night prior to sentence and by imposing a (suspended) term of detention, which is said to be a manifestly excessive penalty.
The incident giving rise to the charges occurred on a street in Davoren Park in February 2013. The appellant and her co-offender assaulted a girl who was known to them. The girl fell to the ground, where the assault on her continued. It included kicks to her body and head. Indeed, the appellant was described as kicking the girl’s head “like a soccer ball”. This was the subject of count 1. The appellant and her co-offender then assaulted a woman who came to the aid of the girl: count 2. The agreed factual basis for the plea to count 2 was that the appellant pulled…

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 F, Ma v Police

Details

AGLC: F, Ma v Police [2015] SASC 10
Case: [2015] SASC 10
Decision Date: 3 February 2015

CaseChat Overview and Summary

The appellant, F, Ma, appealed against the penalty imposed by the Youth Court of South Australia, which had sentenced the appellant on two counts of aggravated assault. The appellant pleaded guilty to the first count, but the second count was tried by a different magistrate. The appellant pleaded guilty to the second count during the trial. The central issue for the court was whether the magistrate erred in refusing to refer the matter back to the original sentencing magistrate and whether the sentence was manifestly excessive. The court was required to determine if there was a procedural error in the sentencing process and if the sentence imposed was appropriate given the circumstances.

The court considered whether there was a procedural error in the sentencing process. It noted that the first magistrate had sentenced the appellant on the first count of aggravated assault, while the second count was tried by a different magistrate. The appellant pleaded guilty to the second count during the trial. The court examined the circumstances under which the magistrate refused to refer the matter back to the first magistrate, considering whether the refusal was justified. Furthermore, the court assessed whether the sentence imposed was manifestly excessive, taking into account the nature of the offences, the appellant's age, and the principles of sentencing juveniles.

The court found that there was no procedural error in the magistrate's refusal to refer the matter back to the first magistrate. The court held that the magistrate was not bound to refer the case back and had the discretion to proceed with the sentencing. Regarding the sentence's excessiveness, the court concluded that the sentence was not manifestly excessive. The court considered the nature of the offences, the appellant's age, and the sentencing principles applicable to juveniles, and found that the sentence was proportionate and appropriate given the circumstances.

The court dismissed the appeal, affirming the sentence imposed by the Youth Court. The court found no procedural error in the magistrate's refusal to refer the matter back to the first magistrate and concluded that the sentence was not manifestly excessive. Therefore, the sentence remained as imposed by the Youth Court.

Orders