Hann v Police - [2019] SASC 213

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HANN v POLICE
[2019] SASC 213
Judgment of The Honourable Chief Justice Kourakis
20 December 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence imposed by a Magistrate.
On 28 May 2019 the appellant was sentenced for the offences of indecent behaviour, driving whilst disqualified, contravening an intervention order, being unlawfully on premises, failing to comply with his ANCOR obligations, and four counts of breach of bail. For each of the first three offences, he was sentenced to one month’s imprisonment, and was convicted without penalty for the remaining offences.
Each of the sentences of imprisonment were imposed cumulatively and the first of them cumulatively upon a revoked suspended sentence of five months’ imprisonment, resulting in a total period of imprisonment for eight months. However, the Magistrate ordered that the appellant only serve five months of his sentence of imprisonment with the remainder of the sentence being suspended upon the appellant entering into a bond to be of good behaviour for 12 months.
The appellant appealed to this Court against his sentence on the following seven grounds:
1. The Magistrate erred in refusing to order that the appellant be assessed as suitable for participation in the Treatment Intervention Court Program;
2. The Magistrate erred in failing to find proper grounds to excuse the breach of the suspended sentence;
3. The Magistrate erred in failing to find special circumstances to reduce the period of the revoked sentence;
4. The Magistrate erred in sentencing on an incorrect factual basis in relation to the charge of indecent behaviour;
5. The Magistrate erred in sentencing on irrelevant factual considerations in relation to the driving whilst disqualified charge;
6. The sentences imposed for the indecent behaviour and breach of intervention order charges were manifestly excessive;
7. The Magistrate erred in failing to take into account that the appellant would lose his accommodation if the revoked suspended sentence was not reduced, or, in the alternative, the Magistrate did not give sufficient reasons as to why she declined to reduce the sentence.
Held, allowing the appeal on grounds 3, 4, 6 and 7:
1. The revocation of the suspended sentence of imprisonment is confirmed and the term of imprisonment to be served is reduced to three months.
2. For the offences of indecent behaviour and drive whilst disqualified, the appellant is sentenced to a total period of imprisonment for one month and 21 days to be served cumulatively on the reduced term of the revoked suspended sentence.
3. The sentence imposed for the breach of the intervention order is set aside and the appellant is convicted without penalty.
4. The appellant is to serve three months of his sentence of imprisonment with the remainder of the sentence being suspended upon the appellant entering into a bond…

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 Hann v Police

Details

AGLC: Hann v Police [2019] SASC 213
Case: [2019] SASC 213
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the matter of Hann v Police, the appellant challenged the sentence imposed by the Magistrates Court of South Australia. The appellant, Mr Hann, was convicted of driving while disqualified and indecent behaviour. The appeal was heard by the Supreme Court of South Australia, which had the jurisdiction to review the sentence on appeal.

The legal issues before the court were whether the sentence imposed by the Magistrates Court was excessive and whether there were any grounds for interference with the sentence. The court needed to consider the appropriate punishment for the offences and whether the sentence was lenient or harsh. The court also needed to consider whether the sentence should be reduced, increased, or left as it was.

The court found that the sentence of one month was lenient and that there were no grounds for interference. The court noted that the appellant had spent two days in custody following his arrest and had remained in custody until his release on 3 June 2019. The court also noted that the appellant had pleaded guilty to the offence of indecent behaviour, which resulted in a 30 per cent reduction in the sentence. The court concluded that it would not have imposed a lesser sentence and dismissed the appeal.

The court revoked the suspended sentence of imprisonment and reduced the term of imprisonment to be served to three months. The court also imposed a sentence of 21 days for the offence of indecent behaviour, which was to be served cumulatively on the reduced term of the revoked suspended sentence. The court ordered that the sentence of one month's imprisonment imposed by the Magistrate on the drive disqualified offence be served cumulatively on the sentence of 21 days for the offence of indecent behaviour. The court set aside the sentence imposed for the breach of the intervention order and ordered that the appellant be convicted without penalty. The court partially suspended the period of imprisonment by releasing the appellant on a bond after he had served three months. The bond was to be for a period of two years and was to be supervised and to include a condition that the appellant undertakes the Owenia House program.

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

The sentence of one month was lenient. I would dismiss the appeal. I would not have imposed any lesser sentence.Conclusion I revoke the suspended sentence of imprisonment. I reduce the term of imprisonment to be served to three months’ imprisonment. On the offence of indecent behaviour I sentence Mr Hann to imprisonment for 21 days, arrived at by reducing the sentence of 30 days I would have otherwise imposed by 30 per cent for his plea of guilty. I order that that sentence be served cumulatively on the reduced term of the revoked suspended sentence. I order that that sentence of one month’s imprisonment imposed by the Magistrate on the drive disqualified offence be served cumulatively on the sentence of 21 days I have imposed for the offence of indecent behaviour. Mr Hann spent two days in custody after his arrest on the indecent behaviour offence. He remained in custody following his sentence on 28 May 2019, until he was released on 3 June 2019. Having regard to that time served, I set aside the sentence imposed for the breach of the intervention order and order instead that he be convicted without penalty. I would partially suspend the period of imprisonment Mr Hann is to serve by releasing him on a bond after he has served three months. The bond is to be for a period of two years and is to be supervised and to include a condition that he undertakes the Owenia House program. I will hear the parties on the other conditions of the bond.

Ratio Decidendi

Legal Principle Established

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