Fitzgibbins v Police No. Scciv-02-535

FITZGIBBINS v POLICE
[2002] SASC 166
MAGISTRATES APPEAL
Ex tempore

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

CaseChat Overview and Summary

The appeal, Fitzgibbins v Police, was brought before the court against a sentence imposed by a magistrate. The appellant, Shannon Joseph Fitzgibbins, was found guilty of unlawful possession by the Whyalla Magistrates Court. The magistrate sentenced the appellant to a three-month imprisonment term, which was suspended on the condition that he enter a bond of good behaviour for two years, perform 300 hours of community service, and pay compensation of $1367.18 to the victim. Fitzgibbins appealed against the sentence, arguing that the magistrate was incorrect in imposing the sentence of imprisonment and that there were other non-custodial options available. The Crown conceded that there were other avenues available to the magistrate when dealing with the appellant and that there should not have been an order for compensation given the appellant’s unchallenged denial that he had caused damage to the motorcycle.

The court considered the legal issues presented in the appeal, specifically whether the magistrate had erred in imposing a sentence of imprisonment when there were other non-custodial options available and whether the order for compensation was justified. The court noted that this was the appellant’s first dishonesty offence and that there were other avenues available to the magistrate when dealing with the appellant. The Crown conceded that the magistrate was incorrect in imposing a sentence of imprisonment and that there should not have been an order for compensation given the appellant’s unchallenged denial that he had caused damage to the motorcycle. The court accepted the Crown’s concession and set aside the sentence imposed by the magistrate and resentenced the appellant. The court noted that the appellant’s offending was serious, but having regard to his plea of guilty and the fact that this was his first dishonesty offence, it was appropriate to consider a sentence other than a term of imprisonment.

The court resentenced the appellant, recording a conviction and releasing him on a bond to be of good behaviour for a period of two years. The terms of the bond included being of good behaviour and complying with the other conditions of the bond, appearing before the court for sentence for the offence of unlawful possession if any of the conditions of the bond were disobeyed, being under the supervision of a Community Corrections Officer for a period of two years, obeying the lawful directions given to him by the Community Corrections Officer to whom he was assigned, performing 80 hours of community service within six months from the date of this bond, obeying the lawful directions given to him in that regard, undergoing such courses and programs as were directed by his Community Corrections Officer, and reporting within two working days of having signed the bond at the offices of the Department for Correctional Services at Whyalla. If the appellant breached the bond, he faced the prospect of coming back to the court to be resentenced in regard to the offence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established