HART v Police - [2010] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HART v POLICE
[2010] SASC 47
Judgment of The Honourable Justice Nyland
3 March 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
Appeal against sentence - appellant sentenced for multiple offences - error with respect to maximum sentence applicable to one sentence - appeal allowed - appellant re-sentenced - proper grounds to refrain from revoking order for suspension of earlier sentence but bond extended.
Summary Offences Act 1953 ss 6(2), 7(1)(a), 18(2); Criminal Law Consolidation Act 1935 ss 20(3), 85(3), referred to.
R v Buckman (1988) 47 SASR 303, applied.
Police v Lindblom [2009] SASC 168; R v Marston (1993) 60 SASR 320; R v Gannon (2009) 103 SASR 398; Drewett v Rowbottom (1987) 139 LSJS 468, considered.

HART v POLICE
[2010] SASC 47

NYLAND J: This is an appeal against sentence. The appellant appeared before a Stipendiary Magistrate in the Magistrates Court at Mount Gambier on 14 October 2009 and pleaded guilty to an offence of loitering in a public place, contrary to s 18(2) Summary Offences Act 1953 (“SOA”). That offence was alleged to have occurred on 1 June 2008. The maximum penalty for that offence is a fine of $1,250 or imprisonment for three months. The charge had been set down for trial on 14 October 2009 and the plea was therefore entered very late. Notwithstanding the lateness of the plea, the Magistrate indicated he would give a small discount to the appellant for it. He sentenced the appellant to 60 days imprisonment, reduced by six days as discount for his plea of guilty, resulting in a sentence of 54 days.
On the same date, the appellant pleaded guilty to a charge of disorderly behaviour in a public place, contrary to the provisions of s 7(1)(a) SOA. That offence was alleged to have occurred in Mount Gambier on 7 March 2009. That offence carries a maximum penalty of $1,250 or imprisonment for three months. The learned Magistrate sentenced the appellant to a term of 20 days imprisonment for that offence, reduced from 30 days to reflect his plea of guilty.
The appellant had previously appeared in the Mount Gambier Magistrates Court on 15 October 2007. On that occasion, a sentence of five months imprisonment was imposed with respect to two counts of damage property, contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (“CLCA”), one count of assault, contrary to s 20(3) CLCA and one count of hinder police, contrary to s 6(2) SOA. That sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of three years. It also included a provision that the appellant be under the supervision of a probation officer for a period of 12 months.
The appellant’s convictions for loitering and disorderly…

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: [2010] SASC 47
Decision Date: 3 March 2010

CaseChat Overview and Summary

Hart appealed against his sentence in the Supreme Court of South Australia. He was convicted of multiple offences and sentenced to a suspended sentence of imprisonment, among other penalties. The appellant argued that the magistrate had erred in determining the maximum sentence applicable to one of the offences. The court was required to consider whether the magistrate made an error in law in determining the maximum penalty for the offence and whether the sentence was appropriate given the circumstances of the case. The court found that the magistrate erred in the maximum penalty and, therefore, allowed the appeal. The court re-sentenced the appellant and considered the appropriate length of the bond. The court found that while there were proper grounds to refrain from revoking the order for the suspension of the earlier sentence, the bond should be extended. The final orders included the re-sentencing of the appellant and the extension of the bond period.

Orders