GRAHAM v Police - [2008] SASC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GRAHAM v POLICE
[2008] SASC 122
Judgment of The Honourable Justice Kelly
5 May 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence - appellant sentenced to one year one month and four days imprisonment for theft contrary to s 134 of the Criminal Law Consolidation Act 1935 and aggravated impede in a threatening manner contrary to s 20(1)(e) of the Criminal Law Consolidation Act 1935 - whether magistrate erred in declining to suspend sentence - whether sentence manifestly excessive.
Held: no error by magistrate - circumstances of the offences were serious - appellant had numerous prior convictions for violence and dishonesty - head sentence and non parole period well within an appropriate range - notwithstanding prosecutor's attitude to suspension, the decision not to suspend was within the magistrate's discretion - appeal dismissed.
Criminal Law Consolidation Act 1935 s 20(1)(e), s 134, referred to.
Ienco v Kraft and Modra (1990) 53 SASR 40; R v Nemer [2003] 87 SASR 168, discussed.

GRAHAM v POLICE
[2008] SASC 122
Kelly J
Introduction

This is an appeal against a sentence imposed in the Adelaide Magistrates Court on 22 January 2008. The appellant pleaded guilty to one count of theft contrary to Section 134 of the Criminal Law Consolidation Act 1935 and one count of aggravated assault contrary to Section 20(1)(e) of the Criminal Law Consolidation Act 1935. The maximum penalty for theft is 10 years and the maximum penalty for aggravated assault is 3 years.
The circumstances of the offending accepted by the learned magistrate were, that about 6.00am on 21 April 2007, the appellant, in company of two others, including a woman named Ms Taylor, confronted the victim who had just left the Adelaide Casino and was walking across North Terrace up to Bank Street. Ms Taylor asked the victim for any small change which he had. When he declined to give her any small change, Ms Taylor took his wallet and the contents from him. The appellant pleaded guilty to that theft on the basis that he was party to a joint enterprise to steal. He stood in the path of the victim and stopped him from leaving and did so in a threatening manner. The police were called, the appellant was identified and arrested nearby.
The magistrate, after taking into account the plea of guilty and a period of 1 month and 27 days for time already spent in custody, imposed a head sentence of 1 year 1 month and 4 days. He declined to suspend the sentence. As the appellant was on parole at the time of the offences, he thus had to serve the outstanding balance of the unexpired parole in the total amount of 1 year 3 months and 14 days. Effectively therefore, the overall sentence imposed by the magistrate was a total head sentence of 2 years 4 months and 18 days. He fixed…

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

Case: [2008] SASC 122
Decision Date: 5 May 2008

CaseChat Overview and Summary

In the case of Graham v Police, the appellant, a 22-year-old Aboriginal man, appealed against his sentence for theft and aggravated impede in a threatening manner. The appellant, who had a history of convictions for dishonesty and violence, was sentenced to one year, one month, and four days imprisonment by the magistrate. The appeal focused on whether the magistrate erred in declining to suspend the sentence and whether the sentence was manifestly excessive.

The legal issues in this appeal were whether the magistrate made an error in declining to suspend the sentence and if the sentence was manifestly excessive. The appellant argued that the starting point for the head sentence was too high given his minor role in the theft, the lack of premeditation, and his non-involvement in direct physical violence against the victim. The court had to determine if the magistrate's decision to not suspend the sentence was within their discretion and if the overall sentence was appropriate given the appellant's criminal history.

The court held that there was no error by the magistrate in declining to suspend the sentence. The circumstances of the offences were serious, and the appellant had numerous prior convictions for violence and dishonesty. The court found that the head sentence and non-parole period were well within an appropriate range. Despite the prosecutor's stance on suspension, the decision not to suspend the sentence was within the magistrate's discretion. Therefore, the appeal was dismissed.

The Supreme Court did not make any specific final orders beyond dismissing the appeal. However, by dismissing the appeal, the original sentence imposed by the magistrate was upheld, and the appellant remained subject to the one-year, one-month, and four-day imprisonment term.

Orders

Orders of the court

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Background

Background to the litigation

It was contended that good reason to suspend the sentence could be found in the appellant’s prospects for rehabilitation and the need to supervise and address his mental health issues. Background The appellant is a 22 year old Aboriginal man originally from Point Pearce, Yorke Peninsula. He has numerous convictions for offences of dishonesty and violence, including both assault and assault occasioning actual bodily harm, and other behavioural offences. On 14 April 2004 the appellant was sentenced for an offence of carrying an offensive weapon and assault. On that occasion the appellant was placed on a bond to be of good behaviour for 2 years. On 13 May 2004 the appellant was convicted for the offence of occasioning actual bodily harm and sentenced to 2 months imprisonment which was suspended on condition that the appellant enter into a bond to be of good behaviour for 2 years and accept 12 months supervision. Later that year on 14 October 2004 the appellant was sentenced for a number of counts of breaching bail and another offence of driving or using a motor vehicle without consent. For those offences he was sentenced to 3 months and 2 weeks imprisonment and again given the benefit of a suspended sentence to be of good behaviour for a period of 12 months. On 4 October 2006 the appellant was dealt with for a total of twenty two offences including three of assaulting police, one of assault and two charges of theft. The offending in respect of which the appellant was sentenced on 4 October 2006 breached all of the previous bonds which the appellant had entered into. On that occasion he was sentenced to 2 years imprisonment with a non parole period of 6 months. On 12 February 2007 he was sentenced for carrying an offensive weapon at night in or near licensed premises and was sentenced to a further period of 1 month imprisonment. On 10 April 2007 the appellant was released on parole. 11 days later he committed the offences for which he was dealt with by the magistrate. The appellant was originally charged with major indictable offences. As a result of negotiations between the solicitor employed by the Director of Public Prosecutions and the appellant’s solicitors, a fresh complaint alleging the current offences, was laid in the Adelaide Magistrates Court and the matter was listed for hearing on 18 October 2007. The matter was not finalised on that day, as Mr Grasso SM, the magistrate then assigned to the matter, refused to accept the factual basis which had been negotiated by both parties. The matter was therefore remanded off for further negotiations to occur. Eventually the matter came on again for hearing before the sentencing magistrate on 17 January 2008. The prosecutor then appearing on behalf of the respondent, supported a suspended sentence of imprisonment.Analysis The appellant’s main submission on appeal was that the starting point of 18 months for the head sentence was, in all of the circumstances, too high. Counsel for the appellant pointed to the minor role played by the appellant in the decision to steal the victim’s wallet, the fact that the offence was not pre-meditated and to the fact that the appellant himself offered no direct physical violence to the victim.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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