Field v Police - [2009] SASC 354

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FIELD v POLICE
[2009] SASC 354
Judgment of The Honourable Justice Gray
20 November 2009
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OTHERS
Appeal against sentence - defendant and appellant entered pleas of guilty to charges of dishonestly taking property without owner's consent, damaging property and being unlawfully on premises - one term of 18 months imprisonment imposed to be served cumulative on unexpired period of parole of two months and 16 days - total non-parole period of 15 months fixed - Magistrate made material error when proceeding on basis that defendant charged with offence of causing "aggravated damage" - Magistrate made material error when proceeding on basis that maximum penalty for charge of damaging property six years imprisonment when maximum penalty was three years imprisonment - sentence reconsidered - whether sentence imposed by Magistrate appropriate regardless of error - whether head sentence and non-parole period manifestly excessive - whether sentence should have been suspended.
Held: appeal allowed - non-parole period reduced from 15 months to 12 months - head sentence imposed by Magistrate appropriate - sentence of imprisonment not suspended.
Criminal Law Consolidation Act 1935 (SA) s 85(3), s 85A and s 134(1); Summary Offences Act 1935 (SA) s 17(1) ; Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 31(2)(a), referred to.
House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; Dinsdale v The Queen (2000) 202 CLR 321; R v Carpentieri (2001) 81 SASR 164, considered.

FIELD v POLICE
[2009] SASC 354
Magistrates Appeal: Criminal
GRAY J.

This is an appeal against sentence.
Introduction
The defendant and appellant, Samuel Troy Field, was charged with three offences committed on 19 and 20 October 2008; namely, dishonestly taking property without the owner’s consent contrary to section 134(1) of the Criminal Law Consolidation Act 1935 (SA), damaging property contrary to section 85(3) of the Criminal Law Consolidation Act and being unlawfully on premises contrary to section 17(1) of the Summary Offences Act 1953 (SA). He was also separately charged with breaching bail.
The circumstances of the offending involved the defendant entering the secured premises of a crash repairer at Murray Bridge through a hole in the fence. Once inside the premises, he smashed the window of a vehicle, causing vehicle and other damage to the value of $6,318.84. The defendant then stole property from the vehicle, including a Global Positioning System unit, a CD player and sound amplification equipment. He was apprehended trying to dispose of this property.
On 27 April 2009, following pleas of guilty to all charges, the defendant was sentenced in respect of the first three offences to the one…

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 Field v Police

Details

AGLC: Field v Police [2009] SASC 354
Case: [2009] SASC 354
Decision Date: 20 November 2009

CaseChat Overview and Summary

The appeal in the case of Field v Police was brought by the defendant, the appellant, who had pleaded guilty to charges of dishonestly taking property without consent, damaging property, and being unlawfully on premises. The appellant was sentenced by a Magistrate to a term of 18 months imprisonment, to be served cumulatively on an unexpired period of parole of two months and 16 days, resulting in a total non-parole period of 15 months. The appellant appealed against the sentence, arguing that the Magistrate had made material errors in the sentencing process.

The legal issues that the court had to decide included whether the sentence imposed by the Magistrate was appropriate despite the errors, whether the head sentence and non-parole period were manifestly excessive, and whether the sentence should have been suspended. The court was required to examine the principles of appellate jurisdiction, the approach to sentencing, and the relevant factors that should be taken into account when determining a sentence.

The court found that the Magistrate had made two material errors in the sentencing process. Firstly, the Magistrate had proceeded on the basis that the appellant was charged with the offence of causing "aggravated damage," which was incorrect. Secondly, the Magistrate had proceeded on the basis that the maximum penalty for the charge of damaging property was six years imprisonment, whereas the maximum penalty was actually three years imprisonment. The court reconsidered the sentence, taking into account the errors made by the Magistrate. The court found that the head sentence imposed by the Magistrate was appropriate, but the non-parole period was manifestly excessive. The court reduced the non-parole period from 15 months to 12 months, while confirming the sentence of the Magistrate.

The appeal was allowed for the limited purpose of reducing the non-parole period from 15 months to 12 months. The sentence of imprisonment was not suspended. The sentence is to commence on the date the appellant was sentenced by the Magistrate, 27 April 2009.

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

GRAY J

I consider it is appropriate to fix a non-parole period of 12 months in lieu of the 15 month period fixed by the Magistrate. In particular, as earlier discussed, I consider the defendant does have some prospects of rehabilitation and the shorter non-parole period may facilitate this process. Conclusion Having regard to the matters discussed above, it is appropriate to allow the appeal for the limited purpose of reducing the non-parole period from 15 months to 12 months. Otherwise the sentence of the Magistrate is confirmed. The sentence is to commence on the date the defendant was sentenced by the Magistrate, 27 April 2009.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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