HATCHER v Police

[2006] SASC 332

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HATCHER v POLICE

[2006] SASC 332

Judgment of The Honourable Justice David

7 November 2006

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Appeal against the decision of a magistrate to fine the appellant $200 after pleading guilty to a breach of bail, namely failing to report to police as required – the appellant had already spent three days in custody prior to sentencing – confusion between the duty solicitor and the appellant as to whether the duty solicitor was assisting or acting for the appellant – the magistrate was not informed that the appellant had told police the day before he was due to report that he would have difficulty reporting the following day – whether the sentence miscarried because this information was not conveyed to the magistrate – whether the fine in addition to time spent in custody was manifestly excessive – held, appeal allowed – the sentence miscarried – confusion between the duty solicitor and the applicant resulted in important information not been communicated to the magistrate – this information may have swayed the magistrate not to fine the appellant – appellant re-sentenced – conviction without penalty.

HATCHER v POLICE
[2006] SASC 332

Magistrates Appeal:  Criminal

1. DAVID J.               The appellant appeals against the decision of a magistrate to fine him $200 after entering a plea of guilty to a charge of failing to comply with a term or condition of a bail agreement, contrary to s 17 of the Bail Act 1985.

2. The appellant breached bail by failing to report on the appropriate day. I am told that in submissions made on his behalf by the duty solicitor there was important material that was not put before the magistrate that may have affected the penalty that was given. It was not put that the day before he was meant to have reported he contacted the police to tell them that he was going to have difficulties reporting. There was some confusion between the appellant and the duty solicitor, and as a result of that confusion it was put to me that this important piece of information was not conveyed to the magistrate.

3. The respondent does not dispute these facts, and it is also agreed that the appellant spent three days in custody as a result of the breach. It is argued that the sentence has, therefore, miscarried because important information through no fault of the appellant was not put before the magistrate. It was put to me that a fine on top of the fact that he spent three days in custody was a manifestly excessive sentence.

4. I find that there was confusion between the duty solicitor and the appellant because it was difficult to draw the lines between the duty solicitor helping and, in fact, acting. Because of this confusion, an important piece of information that may have swayed the magistrate not to fine the appellant was not put before him, and as a result of that I think the matter has miscarried. In coming to that finding I do not in any way criticise the duty solicitor, because duty solicitors act in very difficult circumstances. Nevertheless, bearing in mind that the appellant has already spent three days in custody, and bearing in mind that it is not disputed that the day before he failed to report he told the police that he would not be able to report, justice will be served if he is convicted without penalty.

5. The order is that the appeal be allowed. The decision of the magistrate fining the appellant $200 is quashed and instead there will be a conviction without penalty recorded. The costs ordered to be paid by the magistrate in the Magistrates Court remain. The respondent pay the appellant’s costs of this appeal in the sum of $150.