SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HEBBERMAN v POLICE
[2010] SASC 98
Judgment of The Honourable Justice Gray
9 April 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY SERVICE ORDERS
Appeal against sentence - defendant and appellant pleaded guilty to offence of being unlawfully on premises contrary to section 17(1) of the Summary Offences Act 1953 (SA) - defendant placed on good behaviour bond of six months in the sum of $500.00 - condition of bond that defendant not attend at premises the subject of the primary charge - defendant breached the condition of bond by attending at those premises - Magistrate convicted defendant of offence of being unlawfully on premises and ordered that defendant perform 100 hours of community service within six months - whether sentence manifestly excessive - whether Magistrate erred in failing to give adequate weight to impact that community service ordered would have on defendant's employment and failing to allow defendant to make submissions on that matter - whether defendant's non-compliance with bond could be characterised as trivial and requiring no further action - whether Magistrate erred in recording a conviction.
Held: appeal allowed - conviction and sentence imposed by Magistrate set aside - defendant placed on 12 month good behaviour bond supervised for six months - condition of bond that defendant perform 40 hours of community service within six months - Magistrate erred in failing to allow material relevant to impact of community service on defendant's employment to be put before Court - denial of procedural fairness requires reconsideration of matter - consideration of characterisation of bond - consideration of discretion to proceed without recording conviction - having regard to circumstances of offence and defendant good reason exists for Court to proceed without recording a conviction.
Summary Offences Act 1953 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 16, s 39, s 47(1)(h) and s 58(1), referred to.
Cutting v Police [2009] SASC 326; Nollen v Police (2001) 78 SASR 421; Fischer v Chambers (1972) 4 SASR 105; Buttigieg v Police (1999) 74 SASR 229; McAvaney v Quigley (1992) 58 A Crim R 457; R v Lambert [2009] SASC 307; Hodgins v Police (2008) 256 LSJS 270, considered.
HEBBERMAN v POLICE
[2010] SASC 98Magistrates Appeal
GRAY J:
Introduction
This is an appeal against sentence.
On 8 July 2009, the defendant and appellant, Rhys Kym Hebberman, pleaded guilty to the offence of being unlawfully on premises situated behind Shapes Nite Club, Naracoorte on 15 February 2009 contrary to section 17(1) of the Summary Offences Act 1953 (SA).[1] The Magistrate sentenced the defendant without recording a conviction and imposed a bond in the sum of $500.00 to be of good behaviour for a period of six months. It was a condition of that bond that the defendant not attend at or…
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CaseChat Overview and Summary
The legal issues in this case were whether the sentence imposed by the Magistrate was manifestly excessive, whether the Magistrate erred in failing to give adequate weight to the impact that community service ordered would have on Hebberman's employment and in failing to allow him to make submissions on that matter, and whether Hebberman's non-compliance with the bond could be characterised as trivial and requiring no further action. The court also had to consider whether the Magistrate erred in recording a conviction.
The court found that the Magistrate's order that Hebberman pay the amount of the bond of $500.00 was appropriate in the circumstances. The court found that the defendant breached his contract with the State and it was appropriate that he forfeit the amount of money stipulated by the terms of that contract. However, the court found that the sentence imposed by the Magistrate was manifestly excessive. The court found that the Magistrate erred in failing to give adequate weight to the impact that the community service ordered would have on Hebberman's employment and in failing to allow him to make submissions on that matter. The court found that Hebberman's non-compliance with the bond could be characterised as trivial and requiring no further action. The court found that the Magistrate erred in recording a conviction.
The appeal is allowed. The conviction and sentence imposed by the Magistrate is set aside. The defendant is placed on a 12 month good behaviour bond to be subject to supervision for six months. It is a condition of that bond that the defendant perform 40 hours of community service within six months.
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