FRANZI v Police - [2014] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FRANZI v POLICE
[2014] SASC 161
Reasons for Decision of The Honourable Justice Nicholson
5 November 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - IRREGULARITIES
This is an application for permission to appeal, out of time, against a sentence of a Magistrate. The applicant pleaded guilty to and was convicted of the offences of aggravated assault, damage to property and breach of an intervention order. Those offences emanated from the applicant’s conduct on 8 March 2012 when he forcibly gained entry into his former domestic partner’s home and violently assaulted her. The applicant was sentenced for that offending on 23 August 2012. In imposing a term of imprisonment, the Magistrate reduced her starting point of 12 months to ten months and 16 days on account of the applicant’s guilty pleas and then had regard to five months and 16 days already served, leaving a balance of five months. The sentence was suspended upon the applicant entering into a good behaviour bond for a term of three years. Both the handwritten file endorsement and the Certificate of Record recorded the applicant’s head sentence as being imprisonment for ten months and 16 days.
On 26 August 2013, the applicant was charged with two counts of driving whilst disqualified to which he pleaded guilty on 8 August 2014 in the Elizabeth Magistrates Court. An application for breach of bond was subsequently filed by the police. The applicant now seeks to appeal against the sentence imposed for his previous offending on the basis that the Magistrate incorrectly applied s38 of the Criminal Law (Sentencing) Act 1988 (as then in force) when imposing a bond of three years duration. The applicant contends that, as the applicant’s sentence included a period for time already served, the Magistrate effected a partial suspension of the sentence pursuant to s38(2a) and therefore was limited, pursuant to s38(2b), to imposing a bond for the length of the balance suspended, being a period of five months.
Held: (1) Application for permission to appeal out of time refused. (2) When ordering the suspended sentence bond, the Magistrate exercised the power available under s38(1) of the Act, not s38(2a). (3) The file endorsement and the Certificate of Record in the Magistrates Court incorrectly recorded the terms of the sentence passed. (4) The Magistrates Court is directed to correct the file endorsement and Certificate of Record to accurately record the sentence imposed, being a sentence of five months imprisonment suspended upon entering into a bond to be of good behaviour for three years.
Criminal Law (Sentencing) Act 1988 s18A, s38, s58; Criminal Law Consolidation Act 1935 s20, s85; Intervention Orders (Prevention of Abuse) Act 2009 s31; Supreme Court Civil Rules 2006 r281; Criminal Law…

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: FRANZI v Police [2014] SASC 161
Case: [2014] SASC 161
Decision Date: 5 November 2014

CaseChat Overview and Summary

The case of FRANZI v Police concerns an appeal against a sentence imposed by a Magistrate, specifically a suspended sentence bond. The applicant, FRANZI, challenges the sentence imposed on 23 August 2012, arguing that the Magistrate erred in the application of s38(2b) of the Criminal Law (Sentencing) Act 1988. FRANZI contends that the Magistrate improperly imposed a bond for a term exceeding five months, when the sentence was supposed to be partially suspended in accordance with s38(2a). The central legal issues revolve around the interpretation of sentencing provisions and the proper application of the suspended sentence bond mechanism under the Sentencing Act.

The court addressed the applicant’s argument by first clarifying the nature of the sentence imposed. The Magistrate exercised the power to suspend a sentence as provided under s38(1) of the Sentencing Act, not the partial suspension power under s38(2a). The court noted that the applicant's interpretation misconceived the nature of the sentence. The Magistrate had reduced the starting point of 12 months imprisonment to ten months and 16 days, crediting the applicant for the five months and 16 days already served while on remand. The remaining five months imprisonment was suspended, and a bond was imposed for three years. The court found that the applicant's argument was flawed and that the Magistrate's actions were consistent with the statutory provisions. The court also identified inaccuracies in the recording of the sentence in the court documents, though these did not prejudice the applicant.

The application for permission to appeal out of time was refused as the appeal against the sentence had no prospects of success. The court did, however, consider it appropriate to correct the inaccuracies in the court record to accurately reflect the sentence passed. The endorsement and the Certificate of Record should be amended to correctly state the sentence as imprisonment for five months, fully suspended. The court refrained from exploring whether it had the power to unilaterally correct the terms of the Suspended Sentence Bond, as it was not necessary to resolve the appeal. The court emphasised that the formal record of the court should accurately reflect the sentence imposed, and the applicant had not been misled or prejudiced by the errors.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for permission to appeal out of time, against a sentence imposed by a Magistrate. On 23 August 2012, the Magistrate imposed a suspended sentence bond for a term of three years. The applicant now contends that the Magistrate, in so doing, acted contrary to s38(2b) of the Criminal Law (Sentencing) Act 1988 (as then in force). The applicant submits that, given the way in which the prison sentence imposed was structured, the Magistrate effected a partial suspension pursuant to s38(2a) and therefore the length of any bond was to be no more than five months (the length of the period of imprisonment to be suspended). This submission misconceives the nature of the sentence that was imposed. The Magistrate exercised the power to suspend provided for by s38(1) of the Sentencing Act, not that provided for by s38(2a). For the reasons that follow, the application for permission to appeal out of time is refused.Background In the early hours of 8 March 2012, the applicant forcibly gained entry to his former domestic partner’s home by ripping the screen door off its track. Having gained entry, the applicant violently assaulted the victim. This included grabbing her by the throat and choking her and also striking her on several occasions. The applicant threatened and detained the victim against her will when she attempted to flee from the rear of the premises. After a period of time the appellant dozed off. This allowed the victim to escape and alert neighbours as to her situation. By attending his former partner’s home, the applicant breached an intervention order that had been put in place on 10 November 2011. In addition, he was charged with a number of serious offences, although three (aggravated serious criminal trespass, endangering life and unlawful detention) were withdrawn upon his entering pleas of guilty to aggravated assault,[1] damage property[2] and breach of an intervention order.[3][1] Criminal Law Consolidation Act 1935, s20(3),[2] Criminal Law Consolidation Act 1935, s85(2).[3] Intervention Orders (Prevention of Abuse) Act 2009, s31. On 23 August 2012, the Magistrate recorded convictions for each of these offences and imposed a single sentence pursuant to s18A of the Sentencing Act. In doing so, the Magistrate indicated in her sentencing remarks that she had reduced her starting point of 12 months imprisonment to ten months and 16 days, by way of a discount for the applicant’s guilty pleas. The applicant was in custody on remand at the time of sentencing and had been so for five months and 16 days. The Magistrate gave credit for this period of five months and 16 days already served, leaving a balance of five months imprisonment. That period of imprisonment was suspended upon the appellant entering into a suspended sentence bond to be of good behaviour for a period of three years. The terms of the bond included a provision that the appellant was to be under the supervision of the Department of Correctional Services for a period of 18 months.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

The terms of the sentence as set out in the Suspended Sentence Bond are also incorrectly recorded. There has been no prejudice to the applicant. At all material times, the applicant must be taken to have understood that he was subject to a Good Behaviour Bond for three years with the risk that he would be ordered to serve a further period of five months imprisonment if he breached that Bond. The explanation provided immediately under the reference to “10 MONTHS 16 DAYS” is clear to the effect that the period to be served, but for the suspension, is five months. The reference later in the Bond document to “5 MONTHS 16 DAYS” is clearly a typographical error on the face of the document.Conclusion The appeal against sentence has no prospects of success and for this reason the application for permission is to be dismissed. However, the inaccuracies in the court records should not be allowed to stand. This Court has the power to correct a court record where the terms of any endorsement and subsequent Certificate of Record are inconsistent with the sentence as passed.[7][7] R v Williams [2006] SASC 237 at [42]-[47]. Like in R v Williams,[8] both the handwritten endorsement and the Certificate of Record are incorrect and confusing. The court record is the formal record either signed by a Judge[9] or based on an endorsement signed by a Magistrate.[10] It should accurately record the sentence imposed. Various authorities, including the Department of Correctional Services, rely on the court record as being the formal record of the court.[11][8] [2006] SASC 237.[9] The practice in the District and Supreme Courts is for the Judge to sign a “report as to prisoner tried”.[10] The practice in the Magistrates Court.[11] R v Williams [2006] SASC 237 at [45]. The endorsement and the Certificate of Record, in this case, should be corrected to show the sentence passed as being one of imprisonment for five months fully suspended upon the terms as to the Suspended Sentence Bond ordered by the Magistrate as presently recorded. The question of correcting the terms of the Bond raises different considerations. It is not immediately clear to me that the powers of this Court, as explained in R v Williams, inherent, or otherwise, extend to the unilateral correction of the terms of a Bond which, by its nature, is the written record of an agreement reached by a defendant and the Court. However, I do not need to explore this issue further. For the purposes of this appeal, it is sufficient that the sentence the subject of the Bond be properly described in the Certificate of Record. The Suspended Sentence Bond is not itself the formal court record of any prison sentence actually imposed other than as to the terms of the Bond itself. The statement of the sentence in the Bond document forms part of the basis upon which the applicant agreed to enter the Bond and give to the Court an undertaking to comply with its conditions. It also is a statement of the sentence that the applicant might be ordered to serve following any breach. However, as earlier explained, the applicant has not, in this or any respect, been misled or suffered prejudice. It will be a matter for the court, hearing any application for breach of Bond, as to how the terms of the Bond are to be construed, whether or not the Bond remains enforceable and whether or not to impose the term shown in the Bond or “any lesser term of imprisonment as may be fixed by the Court”. The latter qualification is a reference to the power to reduce a suspended prison term conferred by and in the circumstances referred to in s58(4) of the Sentencing Act. However, the terms of the Bond must be considered in conjunction with the correct form of the Certificate of Record. The maximum period of imprisonment that the applicant could ever be ordered to serve is five months.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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