Germain v Police

Case [2006] SASC 340

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

GERMAIN v POLICE

[2006] SASC 340

Judgment of The Honourable Justice Gray

17 November 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Magistrates appeal - appeal against sentence - consideration of application of section 18A of the Criminal Law (Sentencing) Act where a mandatory penalty is to be imposed in addition to the primary penalty with respect to one of the offences - discussion of sentencing principles - consideration of importance of adequate reasons by magistrate - discussion of section 19B of the Criminal Law (Sentencing) Act and Griffiths Remands - Held: Appeal allowed - proceedings adjourned pursuant to section 19B of the Criminal Law (Sentencing) Act for sentencing at a later date.

Criminal Law Consolidation Act 1935 (SA) s 86A, s 134; Criminal Law (Sentencing) Act 1988 (SA) s 9, s 10, s 18A, s 19B; Criminal Law (Sentencing - Miscellaneous) Act 1995 (SA); Criminal Law (Sentencing - Miscellaneous) Act 1999 (SA); Bail Act 1985 (SA) s 10, referred to.
Pointon v Police [2004] SASC 4; Police v Whitehouse [2005] SASC 220; Markarian v R (2005) 215 ALR 213; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Slater [2005] SASC 423; R v Waugh (2005) 93 SASR 274; Oliver v Police [2004] SASC 8; Papps v Police (2000) 77 SASR 210; R v Place (2002) 81 SASR 395; Peters v Police [2004] SASC 284; Cross v Police [2001] SASC 47; Szewczuk v Police [2001] SASC 223; Veen v The Queen [No. 2] (1988) 164 CLR 465; Kovacevic v Mills (2000) 76 SASR 404; Scott v Police (1993) 61 SASR 589; Griffiths v The Queen (1977) 137 CLR 293; R v Tindall (1994) 74 A Crim R 275; R v McMann (1997) 70 SASR 1; The Queen v Griggs (1999) 95 FCR 490, considered.

GERMAIN v POLICE
[2006] SASC 340

Magistrates Appeal

GRAY J:

Introduction

  1. This is an appeal against sentence.

  2. On 31 January 2006, the appellant, Stephen Wade Germain, pleaded guilty to the crimes of illegal use of a motor vehicle contrary to section 86A of the Criminal Law Consolidation Act 1935 (SA) and theft contrary to section 134 of the Criminal Law Consolidation Act. 

  3. The maximum penalty for illegal use of a motor vehicle for a first offence is imprisonment for two years: for a subsequent offence, imprisonment for not less than three months and not more than four years. Pursuant to section 86A, the offender must also be disqualified from holding or obtaining a driver’s licence for a period of 12 months. The maximum penalty for theft is a term of imprisonment of two years.

  4. In the early 1990’s the appellant was convicted of a number of offences pertaining to illegal use of and illegally interfering with a motor vehicle.…

Continue reading Germain v Police

Sign in free to access the full text

Details
AGLC
Germain v Police [2006] SASC 340
Case
[2006] SASC 340
Decision Date

CaseChat Overview and Summary

In the matter of Germain v Police, the appellant appealed against the sentence imposed by a magistrate, challenging the application of section 18A of the Criminal Law (Sentencing) Act, which mandates a penalty in addition to the primary penalty for one of the offences. The appeal also questioned the magistrate's application of sentencing principles and the adequacy of the reasons provided. The Court of Appeal was required to determine whether the magistrate appropriately applied the sentencing principles, particularly concerning deterrence and the appellant's criminal antecedents, and if the reasons provided were sufficient to justify the sentence.

The Court of Appeal examined the magistrate's sentencing approach, noting that while section 9(2) of the Criminal Law (Sentencing) Act states that the validity of a sentence is not affected by non-compliance, the importance of providing adequate reasons was underscored in previous authorities. The Court found that the magistrate's reasons were inadequate, leading to the conclusion that the sentence should be set aside. The Court also considered the magistrate's emphasis on deterrence and the appellant's criminal history, noting that while these were relevant factors, they should not overshadow other considerations such as the appellant's personal circumstances and prospects for rehabilitation. The Court referenced the observations in Veen (No 2) and the need to avoid imposing penalties that are disproportionate to the gravity of the offence.

The Court of Appeal allowed the appeal, set aside the magistrate’s sentence, and adjourned the proceedings pursuant to section 19B of the Criminal Law (Sentencing) Act to allow for a new sentencing hearing. The Court emphasized the necessity of appropriately balancing various sentencing factors and providing adequate reasons for the sentence imposed. The appellant was granted bail with conditions to attend drug and alcohol rehabilitation courses. This decision highlighted the importance of judicial reasoning in sentencing and the need for a balanced approach that considers all relevant factors.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appellant has given his consent for the present proceedings to be adjourned pursuant to and for the purpose of implementing the procedures in section 19B of the Criminal Law (Sentencing) Act.Conclusion I make the following orders:1. Appeal allowed2. That the Magistrate’s sentence be set aside3.That the proceedings be adjourned to 20 April 2007 at 2.15pm before Mr Kevin Edgecomb SM or the presiding magistrate at the Port Adelaide Magistrates Court pursuant to section 19B(1) of the Criminal Law (Sentencing) Act (to be reviewed by a magistrate). 4.That the appellant be granted bail pursuant to section 10 of the Bail Act 1985 (SA) to include a condition that he follow the directions of the supervising officer with respect to attending drug and alcohol rehabilitation courses.

Ratio Decidendi

Legal Principle Established

Section 9(2) provides that the validity of a sentence is not affected by non-compliance. However, the authorities spell out the importance of and need for reasons.[21] It remains open to a court to set aside a sentence as a result of the inadequacy of reasons.[22] In this case, the Magistrate’s reasons are sufficiently inadequate so as to justify setting aside the sentence imposed.[21] Peters v Police [2004] SASC 284.[22] Cross v Police [2001] SASC 47; Szewczuk v Police [2001] SASC 223.Sentencing considerations The circumstances of this offence were unusual. The appellant did not become aware that the vehicle had been stolen until he was travelling in the vehicle. At relevant times he was intoxicated. The theft was of an odd number of gloves and a stereo and would appear to be a result of his intoxicated state. Counsel for the appellant submitted that the Magistrate erred in treating deterrence as an “overwhelming factor” when considering the sentence to be imposed. Counsel contended that the Magistrate misapplied the observations of the High Court in Veen (No 2)[23] and in doing so placed too much weight on the issue of deterrence and the appellant’s previous convictions for dishonest conduct. As a result, counsel argued, the sentence imposed by the Magistrate was manifestly excessive.[23] Veen v The Queen [No. 2] (1988) 164 CLR 465. In Veen (No 2), Mason CJ, Brennan, Dawson and Toohey JJ observed:[24][T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences…The antecedent criminal history is relevant, however, to show whether the instant offence is uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. [24] Veen v The Queen [No. 2] (1988) 164 CLR 465 at 477 Section 10 of the Criminal Law (Sentencing) Act requires consideration to be given to all relevant factors identified and for appropriate weight to be given to each factor. Deterrence and an offender’s criminal antecedents are but only two of the factors to be considered. The Full Court observed in Kovacevic v Mills[25] that an offender’s personal circumstances and prospects for rehabilitation are factors that must not be overborne by the need for deterrence:[26]We agree that in cases of deliberate and sustained fraud, deterrence must loom large in determining the appropriate sentence. But other matters, especially rehabilitation, must still be considered. We do not agree that deterrence must take priority over all other considerations, at least if that statement means that there is no scope for the Court to be influenced by considerations of rehabilitation in finally arriving at the sentence to be imposed.Similarly Mullighan J observed in Scott v Police:[27]In my view the learned magistrate gave too much emphasis to the prevalence of the offence of shoplifting and the need for general deterrence and too little emphasis to the personal circumstances of the appellant. True it is that she has a significant history of prior offending, but the material before the learned magistrate established a psychological explanation for her conduct of a significant mitigating nature. It seems that the learned magistrate discounted much of this material and there is no reason why he should have done so. Furthermore, there was evidence of a real prospect of rehabilitation…In my view it has been established that the learned magistrate was in error in the exercise of the sentencing discretion by giving undue emphasis to the two matters I have mentioned and too little emphasis to the circumstances in which, and the reasons why, she committed the offences. The sentencing discretion must be exercised afresh.[25] Kovacevic v Mills (2000) 76 SASR 404.[26] Kovacevic v Mills (2000) 76 SASR 404 at [39].[27] Scott v Police (1993) 61 SASR 589 at 592-593.