GRECO v POLICE - [2015] SASC 145

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
GRECO v POLICE
[2015] SASC 145
Judgment of The Honourable Justice Vanstone (ex tempore)
16 September 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - OBTAINING PROPERTY BY DECEPTION - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
Appeal against sentence - appellant pleaded guilty to illegal use of a motor vehicle, six counts of deception and theft - offending was in breach of parole - magistrate imposed sentence for new offending of ten months, reduced from starting point of 12 months for guilty pleas - sentence ordered to be served cumulatively on balance of appellant's unexpired sentence, leaving total sentence of two years, eight months and seven days imprisonment - whether sentence manifestly excessive - whether the magistrate's starting point of 12 months was too high - whether the discount applied by the magistrate for the guilty pleas (17 per cent) was insufficient in all the circumstances.
Held: appeal allowed - in the absence of an explanation or an apparent reason for not allowing the discount of 30 per cent available for the pleas of guilty, the full discount or close to it should have been given - appellant re-sentenced.

GRECO v POLICE
[2015] SASC 145
Magistrates Appeal
Criminal

VANSTONE J (ex tempore): This is an appeal against a sentence imposed in the Magistrates Court. On 15 July 2015 the appellant pleaded guilty to illegal use of a motor vehicle, six counts of deception and theft, all offences being relatively minor ones. The spate of offending, which took place during the days 23 and 24 March 2015, triggered a breach of the appellant’s parole. When he first appeared in court for these offences, on 22 April, 2015, the appellant had already gone back into custody on account of breach of parole conditions.
The appellant was sentenced on the day he entered his pleas of guilty. After hearing submissions from counsel, the magistrate imposed a period of ten months imprisonment for the new offending. That term was reduced from a starting point of 12 months on account of the appellant’s guilty pleas. That reduction amounted to about 17 per cent. (The appellant was entitled to up to 30 per cent.) The sentence was ordered to be served cumulatively upon the balance of the appellant’s unexpired sentence as at 23 March 2015, being one year, ten months and seven days, after deduction for time in custody. This left a total head sentence of two years, eight months and seven days imprisonment, with the magistrate setting a non-parole period of 13 months. Both the total head sentence and the non-parole period were ordered to commence on the day of sentence. The magistrate further ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 14 months.
By notice of appeal dated…

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 GRECO v POLICE

Details

AGLC: GRECO v POLICE [2015] SASC 145
Case: [2015] SASC 145
Decision Date: 16 September 2015

CaseChat Overview and Summary

The appeal was brought by the appellant, Greco, against a sentence imposed by a magistrate in South Australia. Greco had pleaded guilty to several charges, including illegal use of a motor vehicle, six counts of deception, and theft. The offences occurred while Greco was on parole. The magistrate sentenced Greco to ten months for the new offences, which was reduced from the starting point of 12 months due to the guilty pleas. The sentence was ordered to be served concurrently with the remainder of Greco's unexpired sentence, resulting in a total sentence of two years, eight months, and seven days imprisonment. The appeal centred on whether this sentence was manifestly excessive and if the starting point of 12 months was appropriate. Additionally, the appeal questioned whether the discount applied by the magistrate for the guilty pleas (17 per cent) was insufficient given the circumstances.

The court had to determine if the sentence imposed was manifestly excessive and whether the magistrate's starting point of 12 months was justified. Furthermore, the court considered whether the discount for the guilty pleas was appropriately applied. The appeal argued that the discount for the pleas should have been closer to the full 30 per cent discount available, especially since there was no explanation or apparent reason for not applying the higher discount.

The Supreme Court of South Australia found that the appeal should be allowed. The court determined that the magistrate should have applied the full or close to the full 30 per cent discount for the guilty pleas, given there was no justification for the reduced discount of 17 per cent. Consequently, the appellant was re-sentenced. The court did not provide specific details of the re-sentence but noted that the original sentence was manifestly excessive due to the inadequate discount applied for the guilty pleas.

Orders