FOX v Police - [2005] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FOX v POLICE
Judgment of The Honourable Justice Anderson
9 February 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - RECOGNISANCES - BREACH
Appellant pleaded guilty to two counts of theft, one count of non-aggravated serious criminal trespass, and failing to comply with a suspended sentence bond - suspended sentence was in relation to offences of non-aggravated serious criminal trespass (non-residential), non-aggravated serious criminal trespass (residential), and two counts of larceny - the appellant had been sentenced to a period of eighteen months imprisonment with a non-parole period of twelve months but the sentence was suspended for two years with a bond of $100 - the learned sentencing Magistrate estreated the $100 and ordered the appellant to serve his term of eighteen months - in relation to the offences other than the breach of bond the Magistrate imposed a single penalty of two years imprisonment and ordered that the sentence be served at the expiration of the eighteen month term for the breach of bond - appellant submitted that the sentence was manifestly excessive and that his pleas of guilty and time already spent in custody were not sufficiently taken into account - held: no error on the part of the Magistrate demonstrated - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s58(4)(b), referred to.
R v Place (2002) 81 SASR 395; Wessling v Police (2004) 88 SASR 57; Police v Saunders (2003) 229 LSJS 97; R v Delphin (2001) 79 SASR 429; R v Smith (2002) 224 LSJS 134; Dinsdale v The Queen (2000) 202 CLR 321; R v Proom (2003) 85 SASR 120, considered.

FOX v POLICE
[2005] SASC 40
Magistrates Appeal

ANDERSON J This is an appeal from a Magistrate who sentenced the appellant on 28 October 2004. On that day the appellant pleaded guilty to the theft of a bicycle valued at about $1,000, a non-aggravated serious criminal trespass (non-residential premises), the theft of other property valued at about $2,200, and failing to comply with a bail agreement.
The offences were in breach of a suspended sentence bond which the appellant had entered into on 13 February 2003.
That suspended sentence was in relation to offences of non-aggravated serious criminal trespass (non-residential premises), non-aggravated serious criminal trespass (residential premises), and two counts of larceny.
The appellant had been sentenced to a period of eighteen months imprisonment with a non-parole period of twelve months, but that sentence was suspended for two years with a bond in the amount of $100.
In dealing with the breach of the bond, the learned Magistrate estreated the $100 and ordered that the appellant serve his term of eighteen months imprisonment commencing on 28 October 2004.

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 40
Case: [2005] SASC 40
Decision Date: 9 February 2005

CaseChat Overview and Summary

The appellant in the case of Fox v Police pleaded guilty to multiple criminal charges, including theft, non-aggravated serious criminal trespass, and failing to comply with a suspended sentence bond. The charges stemmed from a suspended sentence related to prior offences of non-aggravated serious criminal trespass and larceny. The sentencing Magistrate imposed a suspended sentence of eighteen months imprisonment with a non-parole period of twelve months, along with a bond of $100. When the appellant breached the bond, the Magistrate ordered the appellant to serve the eighteen-month term and imposed an additional two-year imprisonment term for the other offences, to be served after the initial term. The appellant argued that the sentence was excessively harsh and did not adequately consider his guilty pleas and time spent in custody.

The court was required to determine whether the sentencing Magistrate made any errors in imposing the sentence, particularly whether the sentence was manifestly excessive and whether the appellant's pleas of guilty and time already spent in custody were appropriately considered. The central legal issue was whether the Magistrate correctly exercised their discretion in sentencing and whether there were any judicial errors that warranted the appeal being upheld.

In dismissing the appeal, the court found no error on the part of the sentencing Magistrate. The court held that the Magistrate had correctly exercised their discretion, taking into account all relevant factors, including the appellant's guilty pleas, the nature of the offences, and the need to deter similar criminal behaviour. The court concluded that the sentence imposed was within the range of appropriate penalties for the crimes committed. The appeal was therefore dismissed, affirming the original sentence imposed by the Magistrate.

Orders