SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
GRZYBEK v POLICE
[2008] SASC 161
Judgment of The Honourable Justice White
19 June 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS
Appeal against sentence imposed by a magistrate - appellant sentenced to single total term of imprisonment of eight months in respect of the offences of being unlawfully on premises, assault, behaving in a disorderly manner, and resisting police - term of imprisonment suspended upon entry into bond to be of good behaviour for three years - whether sentence manifestly excessive - whether sentencing remarks adequate - whether circumstances personal to the appellant properly taken into account - appellant an alcoholic and his offences attributable to intoxication - relevance of alcoholism and intoxication to sentencing - whether seriousness of offences required the imposition of a term of imprisonment.
Held: appeal allowed - sentencing remarks so inadequate that this Court should re-sentence - sentence of imprisonment set aside- appellant convicted of all offences and required to perform 72 hours of community service within a period of six months.
Summary Offences Act 1953 s 6, s 7, s 17; Criminal Law Consolidation Act 1935 s 20; Criminal Law (Sentencing) Act 1988 s 9, s 11, s 18A, s 39; Summary procedure Act 1915 s 99, s 99D, referred to.
R v Waugh (2005) 93 SASR 274; R v Place (2002) 81 SASR 395, discussed.
Wood v Samuels (1974) 8 SASR 465; Meeuwsen v Police [2003] SASC 306; S, JC v Police [2007] SASC 27; R v Major (1998) 70 SASR 488; R v Slater [2005] SASC 423; R v Symonds [1999] SASC 217; Germain v Police [2006] SASC 340; R v Wiskich (2007) 207 LSJS 431; R v Wall (2000) 209 LSJS 135; R v Harris and Simmonds (1992) 59 SASR 300; R v Powell (2001) 81 SASR 9; Papastamitis v Police [2003] SASC 102; R v Proom (2003) 85 SASR 120; Hull v Western Australia (2005) 156 A Crim R 414, considered.
GRZYBEK v POLICE
[2008] SASC 161Magistrates Appeal
WHITE J: The appellant appeals against a sentence imposed by a magistrate.
The appellant pleaded guilty to four offences all of which were committed on 12 October 2007. They were being unlawfully on premises, contrary to s 17(1) of the Summary Offences Act 1953 (SOA);[1] assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935;[2] behaving in a disorderly manner in a public place, contrary to s 7(1)(a) of the SOA;,[3] and resisting police officers in the execution of their duty, contrary to s 6(2) of the SOA.[4]
[1] Maximum penalty imprisonment for 2 years.
[2] Maximum penalty imprisonment for 2 years.
[3] Maximum penalty $1,250 or imprisonment for 3 months.
[4]…
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- Case
- [2008] SASC 161
- Decision Date
CaseChat Overview and Summary
The court held that the appeal was allowed and the sentence of imprisonment set aside. The court re-sentenced the appellant, requiring him to perform 72 hours of community service within a period of six months. The court held that the imposition of a sentence of imprisonment of eight months required more by way of reasons than an admonition and exhortation about alcohol consumption. The court held that the appellant's alcoholism and intoxication were relevant factors to be considered in sentencing, but did not absolve him of responsibility for his actions. The court held that the seriousness of the offences did not require the imposition of a term of imprisonment. The court held that the appellant could be sentenced appropriately by the imposition of a requirement that he perform community service. The court held that the requirement would bring home to him the seriousness with which the law views conduct of this kind and should therefore operate as a deterrent.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In my opinion, the remarks are so inadequate in this case that this Court should intervene and sentence afresh. The imposition of a sentence of imprisonment of eight months requires more by way of reasons than an admonition and exhortation about alcohol consumption.Considerations Relevant to Pre-Sentence I agree with counsel for the respondent that there are aggravating features of the appellant’s offending. The offences were committed while he was subject to a good behaviour bond for offences of disorderly behaviour and loitering. Those offences were committed in front of the former premises of the first complainant. It is reasonable to infer that the terms of the bond in relation to those offences were framed with protection of the first complainant in mind. The fact that the offences were committed while the appellant was inebriated is not of itself a mitigating factor.[17] The appellant knew before 12 October 2007 of the effect which alcohol has on him and yet chose to consume alcohol. More significantly, he chose, while intoxicated, to go to the first complainant’s premises. He was not deterred from committing the present offences by the bond to which he was then subject. It can also be said that the appellant has not taken advantage of the leniency which has been extended to him in the past. These factors indicate that personal deterrence is a particularly important consideration in his sentencing.[17] Cf R v Proom [2003] SASC 88 at [43]; (2003) 85 SASR 120 at 129. On the other hand, the appellant has sought and is receiving treatment for his alcoholism. He has recognised his problems and has good insight into them. He is a regular attendee at Alcoholics Anonymous. It can be said that he has embarked, at his own initiative, upon steps directed towards his own rehabilitation. Given the nature of his alcoholism, this cannot have been easy. The evidence before the magistrate indicated that the appellant’s underlying character is sound. There is no reason to suppose that his expressions of contrition are not genuine. His conduct on 12 October 2007 can be regarded as an aberration. When all these factors are considered, I am not satisfied that the offences, serious as they are, require a sentence of imprisonment to be imposed.Re-Sentence In my opinion, the appellant could be sentenced appropriately by the imposition of a requirement that he perform community service. That requirement will bring home to him the seriousness with which the law views conduct of this kind. It should therefore operate as a deterrent. This is a case in which it is appropriate to invoke s 18A of the CLSA. The offences were committed as part of a single course of conduct. I regard the offence of assault and the offence of resisting police officers in the execution of their duties as the most serious of the offences. If sentencing separately for those offences, an order of community service of at least 32 hours in each case would be appropriate. In my opinion, an appropriate single sentence pursuant to s 18A for the four offences is a requirement that the appellant perform 72 hours of community service. Were it not for the appellant’s pleas of guilty, I would have required him to perform at least 96 hours of community service.Conclusion