Harmer v Police - [2017] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARMER v POLICE
[2017] SASC 24
Judgment of The Honourable Justice Kelly
2 March 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - OTHER OFFENSIVE WEAPONS - POSSESSING, CARRYING OR BEING FOUND ARMED
Appeal against sentence. The appellant was sentenced in the Elizabeth Magistrates Court for a number of offences including possessing a knife in a public place, two counts of carrying an offensive weapon, five counts of driving whilst disqualified, and breach of a good behaviour bond. The head sentence of 228 days imprisonment was reduced to 168 days after allowances were made for time already spent in custody and on home detention. The head sentence was comprised of accumulated sentences for four of the driving offences, the weapons offences and the breach of bond. The sentence was partially suspended pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) and the appellant was ordered to serve 60 days imprisonment with the remainder to be suspended upon entering into a good behaviour bond for 18 months.
The appellant appeals on the sole ground that the Magistrate erred in the application of s 33BB of the Criminal Law (Sentencing) Act 1988 (SA) by failing to consider whether the period of 60 days imprisonment not suspended should be served on home detention.
Held (dismissing the appeal):
1. The Magistrate did not err in the application of s 33BB of the Criminal Law (Sentencing) Act 1988 (SA). The Magistrate was correct to decline to order home detention in circumstances where the decision to exercise the discretion under s 38(2a) of the of the Criminal Law (Sentencing) Act 1988 (SA) was to be exercised.
2. The appeal is dismissed.
Motor Vehicles Act 1959 (SA) s 91(5); Summary Offences Act 1953 (SA) s 21C(1), s 21E; Criminal Law (Sentencing) Act 1988 (SA) s 33BB, s 38, referred to.

HARMER v POLICE
[2017] SASC 24
Magistrates Appeals: Criminal
KELLY J.
Introduction

The appellant, Adam Alan Harmer, was sentenced in the Elizabeth Magistrates Court on 16 December 2016 for a number of offences including possessing a knife in a public place, two counts of carrying an offensive weapon, and five counts of driving whilst disqualified. In addition, there was an application for a breach of bond.
For a first offence of driving whilst disqualified contrary to s 91(5) of the Motor Vehicles Act 1959 (SA) there is a maximum term of imprisonment of six months. For a second and subsequent offence the maximum term of imprisonment prescribed is two years. For an offence of possessing a knife in a public place contrary to s 21E of the Summary Offences Act 1953

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 Harmer v Police

Details

AGLC: Harmer v Police [2017] SASC 24
Case: [2017] SASC 24
Decision Date: 2 March 2017

CaseChat Overview and Summary

Harmer is the appellant and the respondent is the police. The case involves an appeal against the sentence handed down by the Magistrates Court of South Australia. The appellant challenges the sentence on the basis that the Magistrate erred in not considering the possibility of serving the 60-day imprisonment term under home detention. The appeal was heard by the Supreme Court of South Australia.

The court had to determine whether the Magistrate erred in not considering the possibility of serving the 60-day imprisonment term under home detention as provided in s 33BB of the Act. The court also had to determine whether the Magistrate's failure to consider this possibility constituted a material error that warranted interference with the sentence.

The court found that the Magistrate did not consider the possibility of serving the 60-day imprisonment term under home detention because it was not raised by the appellant's counsel. The court held that the appellant's counsel was aware of the provisions of s 33BB of the Act but did not raise it as an issue during the sentencing hearing. The court found that the appellant's failure to raise the issue meant that the Magistrate was not required to consider it. The court also found that the appellant's sentence was not manifestly excessive or inappropriate.

The court dismissed the appeal and upheld the sentence handed down by the Magistrates Court. The court held that the Magistrate's failure to consider the possibility of serving the 60-day imprisonment term under home detention did not constitute a material error that warranted interference with the sentence. The court found that the sentence was appropriate and did not require any alteration.

Orders

Orders of the court

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Background

Background to the litigation

It is necessary before considering the merits of the appellant’s complaint to set out in some detail the relevant background. Background The appellant was a 28 year old man at the time he came to be sentenced in relation to the following offences:·Offences of driving without due care and driving whilst disqualified committed on 21 December 2015;·Offences of speeding and driving whilst disqualified committed on 9 January 2016;·An offence of driving whilst disqualified committed on 11 January 2016;·Offences of speeding, driving whilst disqualified and breach of bail committed on 10 February 2016;·An offence of driving whilst disqualified committed on 15 February 2016;·An offence of possessing a controlled drug committed on 1 April 2016;·An offence of possessing a knife in a public place committed on 1 April 2016;·An offence of carrying an offensive weapon committed on 9 April 2016;·Offences of possession of a controlled drug, possession of equipment and carrying an offensive weapon committed on 16 May 2016; and ·An offence of possession of a dangerous article committed on 10 October 2016. The appellant also admitted that by these offences he had breached a bond to be of good behaviour which he entered into on 28 September 2015 in respect of an offence of damaging property which was committed on 30 October 2014. In addition the appellant had some previous convictions for driving without due care, prescribed concentration of alcohol offences and a number of offences in 2010 which relevantly included three offences of driving whilst disqualified. At that time the appellant was sentenced to one month imprisonment which was suspended. It is important to understand the course of proceedings in the court below in light of the complaint made on appeal that the Magistrate erred in failing to consider whether the period of 60 days immediate imprisonment should be served on home detention by virtue of the provisions in s 33BB of the Act. On appeal two affidavits were tendered; one from the prosecutor and one from counsel who appeared for the appellant in the court below. Upon the hearing of this appeal both counsel agreed that the contents of those affidavits, insofar as each deponent was involved in the proceedings, comprehensively set out what happened between the date the appellant first entered pleas of guilty to some of the charges on 8 July 2016 and the date that the Magistrate sentenced the appellant for all outstanding matters on 16 December 2016. After the appellant, who was then unrepresented, entered pleas of guilty on 8 July 2016, a pre-sentence report was ordered. That report was received on 25 August 2016. It was, as the Magistrate noted, not an encouraging report. The conclusion of the author of the pre-sentence report is best summarised in the following paragraph:In sum, the defendant has a history of repetitive anti-social behaviour specifically related to driving offending. He has previously been consequence [sic] by the Court and warned about the consequences of continuing this behaviour. These warnings appeared to reduce his recidivism for a short period of time and trigger factors relating to his poor coping skills has escalated his behaviour again in 2014. He presents with criminogenic risk factors especially related to anti-social attitudes, associations, decision making deficits and failure to comply with societal rule. The defendant has acknowledged ‘that he needs to grow up’ and he has a protective factor in that his father is pro-social and has sold his vehicle. …

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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