FOX v Police - [2005] SASC 208

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Criminal)
FOX v POLICE
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Vanstone)
9 June 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
Appeal against sentence in Magistrates Court of South Australia - whether sentence manifestly excessive - whether Magistrate appropriately reduced sentence for time spent in custody - whether Magistrate erred in failing to specify reduction for time in custody and pleas - appeal dismissed.
Criminal Law (Sentencing) Act 1988, s 30, s 31, s 32, s 58; Correctional Services Act 1982 s 75, referred to.
R v Delphin (2001) 79 SASR 429, discussed.
Kennett v R, Unreported, Court of Criminal Appeal, 18 February 1992, Judgment No.S3273; Rowe v Police [2003] SASC 160; R v Davey [2004] SASC 339; R v Pahuja (No.2) (1989) 50 SASR 511; Lee-Doyle v Police [2001] SASC 292; Venning v Police (2001) 216 LSJS 342; R v Nguyen (2002) 84 SASR 190; R v McHugh (1985) 1 NSWLR 588; Wong v The Queen (2001) 207 CLR 584; R v Harris; R v Simmonds (1992) 59 SASR 300; R v Powell (2001) 81 SASR 9; R v Place (2002) 81 SASR 395, considered.

FOX v POLICE
[2005] SASC 208
Full Court: Doyle CJ, Bleby and Vanstone JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Vanstone J.
In particular, I agree with her that it was open to the Magistrate, having revoked the suspension of the sentence of 18 months’ imprisonment imposed in February 2003, to direct that that sentence be served cumulatively upon the single sentence of two years’ imprisonment that the Magistrate imposed for the offences of August and December 2003, and for the breach of bail in May 2004.
Power to take that course is conferred by s 58(4)(c) of the Criminal Law (Sentencing) Act 1988 (SA). Having done that, it was open to the Magistrate to review and to extend the non-parole period fixed in relation to the suspended sentence, exercising the power conferred by s 32(1) of the Criminal Law (Sentencing) Act.
The advantage of taking that approach is that the Magistrate could have directed that the head sentence and the non-parole period be taken to have commenced when the appellant was taken into custody: see s 30(2) of the Criminal Law (Sentencing) Act.
But the Magistrate was not obliged to proceed in this manner. It was not an error to proceed as the Magistrate did.
That leaves the question of whether the sentence imposed by the Magistrate is manifestly excessive.
It would have been better if the Magistrate had identified the amount of reduction in the sentence that he made for the pleas of guilty, and the extent to which he took into account the time…

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 FOX v Police

Details

AGLC: FOX v Police [2005] SASC 208
Case: [2005] SASC 208
Decision Date: 9 June 2005

CaseChat Overview and Summary

In the case of FOX v Police, the appellant, a convicted person, sought to appeal against the sentence imposed by the Magistrates Court of South Australia. The nature of the dispute centred on the severity of the sentence and whether the Magistrate had appropriately considered the time the appellant had already spent in custody. Additionally, the appellant argued that the Magistrate failed to specify the extent of the reduction in the sentence for the time spent in custody and the pleas made.

The legal issues that arose required the court to determine whether the sentence was manifestly excessive, whether the Magistrate was correct in reducing the sentence for time spent in custody, and if the Magistrate erred in not specifying the reduction for time in custody and pleas. The court was required to review the Magistrate's application of sentencing principles and whether any errors made by the Magistrate warranted a new trial or an appeal.

The court held that the sentence was not manifestly excessive, and the Magistrate had appropriately taken into account the time spent in custody. The court found that while the Magistrate did not explicitly specify the reduction for time in custody and pleas, the overall sentence reflected this consideration. The court dismissed the appeal, confirming that no error was made by the Magistrate that would necessitate a new trial or alteration of the sentence. The appeal was therefore unsuccessful, and no further orders were made beyond the dismissal of the appeal.

Orders