Foley v Police

[2008] SASC 338

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

FOLEY v POLICE

[2008] SASC 338

Judgment of The Honourable Justice Kourakis

2 December 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA

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

Appeal against sentence - appellant pleaded guilty to two counts of driving while disqualified and one count of theft in the Magistrates Court - appellant was convicted and sentenced to six weeks imprisonment for each count of driving while disqualified and one week imprisonment for theft, with those sentences being cumulative - offences committed while appellant was on parole - appellant therefore required to serve his unexpired parole in prison - total custodial sentence of two years, 10 months and 13 days imprisonment - Magistrate fixed non-parole of 16 months - whether sentence manifestly excessive - whether Magistrate erred in ordering that sentences be served cumulatively - whether error of approach in determining non-parole period - whether non-parole period manifestly excessive.

Held:  Sentence is not manifestly excessive - Magistrate did not err in ordering that sentences be served cumulatively - no error of principle in determining non-parole period - non-parole period not manifestly excessive - appeal dismissed.

Motor Vehicles Act 1959 (SA) s91; Criminal Law Consolidation Act 1935 (SA) s134; Correctional Services Act 1982 (SA) s75; Criminal Law (Sentencing) Act 1988 (SA) s31(2), s32, referred to.
R v Creed (1985) 37 SASR 566; R v Major (1998) 70 SASR 488; R v Power [2003] SASC 288; R v Matthews [2008] SASC 259; R v Wilson (1999) 203 LSJS 459, applied.
Police v Cadd (1997) 69 SASR 150, considered.

FOLEY v POLICE
[2008] SASC 338

Magistrates Appeal

1. KOURAKIS J       The appellant appeals against the sentences imposed on him in the Magistrates Court on 11 September 2008.  The offences for which the appellant was convicted and the sentences imposed are as follows:

   ·An offence against s 91 of the Motor Vehicles Act 1959 of driving while disqualified from holding or obtaining a licence, on Christmas Day 2007.  The appellant was imprisoned for six weeks.

   ·An offence against s 91 of the Motor Vehicles Act 1959 of driving while disqualified committed on 2 January 2008.  The appellant was sentenced to a further six weeks imprisonment, cumulative upon the earlier sentence.

   ·An offence of theft of two chocolate bars (s 134 of the Criminal Law Consolidation Act 1935) committed on 28 February 2008.  The appellant was sentenced to a further period of imprisonment for one week, again cumulative on the earlier sentences.

2. The maximum penalty for the offences committed in December 2007 and January 2008 is two years imprisonment because the appellant had been convicted in 1999…