GG v Police - [2023] SASCA 38

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
GG v POLICE
[2023] SASCA 38
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
13 April 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY AND QUASI-CUSTODY
The appellant entered a plea of guilty for aggravated robbery. In respect of this offending the appellant spent 91 days in custody as well as time on home detention and electronically monitored curfew. When sentencing the respondent, the Magistrate only credited the appellant seven weeks for which he did not provide reasons. On appeal, the appellant contends that he was entitled to at least 91 days credit for time already served and by not doing so or providing sufficient reasons the Magistrate made an error.
Held per the Court, allowing the appeal:
1. The appellant was entitled to be credited for 91 days spent in custody.
2. The appellant is granted an extension of time to appeal.
3. The appellant is resentenced.
Criminal Law Consolidation Act 1935 (SA); Sentencing Act 2017 (SA); Young Offenders Act 1993 (SA); Youth Court Act 1993 (SA), referred to.
A, MC v Police (2008) 102 SASR 151; H, PWJ v Police [2005] SASC 103; House v The King (1936) 55 CLR 499; Kentwell v R (2014) 252 CLR 601; Pateras v The Queen [2021] SASCA 107; R v QTV (2003) 87 SASR 378; R v Tsonis [2018] SASCFC 86; Stock v The Queen [2021] SASCA 116, considered.

GG v POLICE
[2023] SASCA 38
THE COURT: Whilst in the company of others, the appellant robbed the victim. The appellant, a youth at the time of the offending, was sentenced in the Youth Court to one month detention, which was suspended on him agreeing to an eight-month Obligation. The appellant submits on appeal that, inter alia, the sentencing Magistrate did not appropriately account for time he had already spent in custody and the final sentence was therefore manifestly excessive.
Background

On 5 March 2021, the appellant, with three others, stopped the victim, pushed him against a wall and told him to hand over his mobile phone and bag. When the victim questioned why, a member of the group said: “Just do it or you are going to be killed, we have knives”. The group took the victim’s mobile phone and bag, which contained his laptop. The group then forced the victim into a doorway, surrounded him, and charged the victim’s phone using a portable charger. Once charged, the victim was forced to open his mobile banking application. The appellant, and one other, inserted their PayID email addresses and made two $1,000 transfers.
The group walked the victim back to his car, took photos of his driver’s licence, and returned his mobile phone and laptop. Before leaving, the group threatened the victim that he would be killed if…

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 GG v Police

Details

AGLC: GG v Police [2023] SASCA 38
Case: [2023] SASCA 38
Decision Date: 13 April 2023

CaseChat Overview and Summary

The appellant, GG, pleaded guilty to aggravated robbery. The dispute arose because the sentencing Magistrate credited GG with only seven weeks for time spent in custody and quasi-custody, despite GG having spent 91 days in custody and further time on home detention and electronically monitored curfew. GG contended that the Magistrate erred by not providing sufficient credit or reasons for the lesser credit. The appeal was heard by Lovell, Bleby, and David JJ.

The Court was required to determine whether the Magistrate erred in the sentencing discretion by failing to adequately credit the appellant for time spent in custody and quasi-custody. The Court also considered whether it should exercise an independent sentencing discretion if an error was identified, and if so, whether to impose a lesser sentence or the same or a greater sentence.

The Court allowed the appeal, finding that the appellant was entitled to be credited for the full 91 days spent in custody. Applying the principles from *House v The King*, the Court exercised its independent sentencing discretion. While acknowledging the Magistrate's experience with youth offenders, the Court determined that, after allowing for the plea discount and time already served, the appellant had effectively served the sentence.

Consequently, the Court granted an extension of time to appeal, allowed the appeal, set aside the sentence imposed by the Youth Court, and ordered that, taking into account time already spent in custody, there be no further penalty without conviction.

Orders

Orders of the court

The appellant entered a plea of guilty for aggravated robbery. In respect of this offending the appellant spent 91 days in custody as well as time on home detention and electronically monitored curfew. When sentencing the respondent, the Magistrate only credited the appellant seven weeks for which he did not provide reasons. On appeal, the appellant contends that he was entitled to at least 91 days credit for time already served and by not doing so or providing sufficient reasons the Magistrate made an error.

Held per the Court, allowing the appeal:

1. The appellant was entitled to be credited for 91 days spent in custody.

2. The appellant is granted an extension of time to appeal.

3. The appellant is resentenced.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Where this Court identifies an error recognised in House v The King, this Court should exercise an independent sentencing discretion.[10] If a lesser sentence is appropriate having regard to the offender and offence, this Court is to impose a lesser sentence. If it is determined that the same or a greater sentence is to be imposed, this Court is not required to resentence.[11] [10] Kentwell v R [2014] HCA 37 at [43]; (2014) 252 CLR 601 at 618.[11] Kentwell v R [2014] HCA 37 at [43]; (2014) 252 CLR 601 at 618; Stock v The Queen [2021] SASCA 116 at [59].Consideration We have considered the material before the sentencing Magistrate. The sentencing Magistrate set out clearly the appellant’s personal circumstances. Mr Evans submitted that when considering the question of resentence, this Court should give considerable weight to the assessment made by the sentencing Magistrate who had been dealing with the appellant over a period of time. This is particularly so when this Court is dealing with a sentence from a specialist jurisdiction such as the Youth Court. As Prior, Bleby and Anderson JJ observed in R v QTV:[12]What is most important is the perceived effect that the particular penalty is likely to have on the youth offender. This can only be based on judgement and experience in dealing with youth offenders. It will always be an inherently difficult task, ideally suited to the judges of the specialist Youth Court established under the Youth Court Act 1993.[12] (2003) 87 SASR 378 at [50]. Having considered all the material that was before the sentencing Magistrate we would sentence no differently. That is, we would sentence the appellant to detention for four months. However, allowing for the discount for his plea of guilty and further allowing for time spent in custody in relation to this matter we find that he has already served this sentence. In the circumstances, we order that, taking into account time already served, there be no further penalty. The Magistrate did not convict the appellant. There was no cross appeal on that sentence and, therefore, we cannot consider that issue.[13][13] H, PWJ v Police [2005] SASC 103 at [20]–[22].Orders1.The appellant is granted an extension of time to appeal.2.The appeal is allowed.3.The sentence imposed by the Youth Court on 13 May 2022 is set aside.4.Taking into account time already spent in custody we order that without conviction there be no further penalty.