Fitzgibbins v Police No. Scciv-02-535

[2002] SASC 166

FITZGIBBINS v POLICE
[2002] SASC 166

MAGISTRATES APPEAL
Ex tempore

1. GRAY J                 This is an appeal against sentence. On 25 March 2002 the appellant, Shannon Joseph Fitzgibbins, was sentenced for the offence of unlawful possession, having pleaded guilty in the Whyalla Magistrates Court. The magistrate sentenced the appellant to three months imprisonment.  He suspended that sentence on the condition that he enter into a bond to be of good behaviour for a period of two years. He also ordered that the appellant perform 300 hours of community service and pay compensation to the victim in the amount of $1367.18.

2. In sentencing the magistrate noted that the basis of the plea was that the appellant had acquired a motorcycle in suspicious circumstances. The appellant asserted that he traded items for the motorcycle, but denied damaging it in any way. The magistrate reasoned that he had no alternative but to impose a sentence of imprisonment. Having regard to the provision of the Criminal Law (Sentencing) Act 1988 (SA) and the availability of other non-custodial options the magistrate was incorrect in that conclusion. This was the appellant’s first dishonesty offence.

3. On appeal, counsel for the Crown correctly conceded that there had been other avenues available to the magistrate when dealing with the appellant. It was further conceded that there should not have been an order for compensation given the appellant’s unchallenged denial that he had caused damage to the motor cycle.

4. Given that error has been conceded, it is necessary to set aside the sentence imposed by the magistrate and resentence the appellant. In these circumstances I extend time for the lodging of the appeal, I allow the appeal and set aside the orders made by the magistrate.

5. You, Shannon Joseph Fitzgibbins, have pleaded guilty to the offence of unlawful possession. Unlawful possession is a serious offence which carries a maximum penalty of two years imprisonment or a fine of $10,000.  You allowed your brother and another man, Joshua Alvares, to reside at your premises. You then swapped various items, including cannabis, for the motorcycle which you believed was owned by Mr Alvares. The motorcycle was damaged. Given your long-standing interest in motorcycles you intended to repair it and you stored the motorcycle at your premises for some weeks prior to the police attending.

6. At the time of offence you were aged 21 years. You were born in Whyalla and have lived there. You left school at the age of 15 and worked as a concreter  all your life at a service station. You are currently unemployed and living with your mother.  You are currently undertaking a TAFE course in painting and decorating. I understand your income is in vicinity of $360 per fortnight, and that you pay board to your mother and maintenance for your young child.

7. Your offending is serious, but having regard to your plea of guilty and the fact this is your first dishonesty offence, it is appropriate to consider a sentence other than a term of imprisonment. Having regard to all that has been put on your behalf I record a conviction, and release you on a bond to be of good behaviour for a period of two years.

8. The terms of the bond are that you:

   -       be of good behaviour and comply with the other conditions of the bond,

   -       appear before the court for sentence for the offence of unlawful possession if you disobey any of the conditions of the bond,

   -       be under the supervision of a Community Corrections Officer for a period of two years,

   -       obey the lawful directions given to you by the Community Corrections Officer to whom you are assigned,

   -       perform 80 hours of community service within six months from

   the date of this bond, and obey the lawful directions given to you

   in that regard,

   -       undergo such courses and programs as are directed by your Community Corrections Officer,

   -       report within two working days of having signed the bond at the offices of the Department for Correctional Services at Whyalla.

9. If you breach that bond you face the prospect of coming back to the court to be resentenced in regard to the offence.