Franks v Police - [1998] SASC 6897

FRANKS v POLICE
[1998] SASC 6897

Magistrates Appeal
Bleby J

The appellant appeals against the sentence imposed on him in the Magistrates’ Court sitting at Elizabeth on 24 March 1998. He was charged with having between 27 August 1997 and 30 August 1997, at Elizabeth South, received a guitar of the value of $600, the property of one Mr Prowse, knowing it to have been obtained in circumstances amounting to an offence, contrary to the provisions of s196(1) of the Criminal Law Consolidation Act 1935. He had also been charged with one count of building breaking and larceny, but this was withdrawn upon his entering a plea of guilty to the offence of receiving.
At the time when the offence was committed, the appellant was on parole, having been released only on 13 August 1997. The unexpired period of his parole at the time when the offence was committed was one year six months and 24 days. Any sentence of imprisonment imposed by the magistrate required that that unexpired period of parole be served: s75 Correctional Services Act 1982, and the sentence imposed was required to be cumulative upon the sentence in respect of which he was on parole: s31(2) Criminal Law (Sentencing) Act 1988.
The magistrate sentenced the appellant to imprisonment for 16 weeks for the offence of receiving, to commence at the expiration of the unexpired balance of the appellant’s period of parole. The magistrate declined to fix a non‑parole period. The reason given for that by the magistrate was expressed as follows:
“Given your breach of home detention and further your breach of parole and your extensive record, including revocation of parole, I do not regard further fixation of a non‑parole period as appropriate. No non‑parole period set - defendant to serve entire term.”
The net result was a total period of imprisonment in excess of one year and 10 months with no non‑parole period.
The circumstances of the offence were that the victim’s house had been broken into on 28 August 1997, and one of the articles stolen was a left‑handed Fernandez electric guitar valued at $600. On 29 August the appellant sold the same guitar to Cash Converters at Gawler for the sum of $130. When questioned by police on 24 September 1997 the appellant asserted that he had bought the guitar some two to four weeks earlier through a friend with whom he was living, and that he had paid $150 for it. He produced a receipt, and acknowledged having subsequently sold it to Cash Converters at Gawler. However, the receipt he produced bore a date of 3 September 1997, some five days after the appellant had sold the guitar. On that discrepancy being pointed out to him, he exercised his right to silence.
The appellant is aged 34. He has an extremely poor antecedent record to which I will need to refer later. He was living in a defacto relationship with three children of the union. He had last worked as a…

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.

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Details

AGLC: Franks v Police [1998] SASC 6897
Case: [1998] SASC 6897
Decision Date: 8 October 1998

CaseChat Overview and Summary

Franks, the appellant, appeals against his sentence imposed by the Magistrates' Court for the offence of receiving stolen property while on parole. The court imposed a sentence of 16 weeks imprisonment, which would be served after the unexpired balance of the appellant's parole. The magistrate did not set a non-parole period, citing the appellant's extensive criminal record and breaches of parole and home detention as reasons. The appellant argues that the magistrate erred in not warning him that a non-parole period might not be set and in not adjourning the case to obtain a pre-sentence report. The appeal focuses on whether the magistrate's failure to warn the appellant about the potential non-setting of a non-parole period and the cumulative nature of the sentence constituted a miscarriage of justice.

The court considered whether the magistrate's failure to warn the appellant about the potential non-setting of a non-parole period constituted error. It was established that a self-represented defendant should be informed if the court is contemplating not fixing a non-parole period, and the court should take steps to ensure the proceedings are free from error. The court concluded that the magistrate did err in not warning the appellant, but this did not constitute a miscarriage of justice as the appellant had a good understanding of court procedures and was given an opportunity to present information relevant to the sentence. The court also considered whether a pre-sentence report should have been obtained but found that given the appellant's extensive criminal record, such a report would not have provided additional relevant information. The court held that it was within the magistrate's discretion not to fix a non-parole period given the appellant's criminal history and behaviour during parole, and there was no error of principle justifying the appeal. The appeal was dismissed.

Orders