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Hubbard v Police

Hubbard v Police

Case [2023] SASC 182 22 December 2023

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SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
HUBBARD v POLICE
[2023] SASC 182
Judgment of the Honourable Justice Kimber
22 December 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
The appellant appeals against a sentence imposed by a Magistrate. The appellant pleaded guilty to offences which included Assault of a Prescribed Emergency Worker (x2), Ill-Treatment of an Animal, Damaging a Motor Vehicle, Carrying an Offensive Weapon, and Breach Bail (x2).
After reductions for the pleas of guilty and time in custody and on home detention bail, the Magistrate imposed a single sentence of 10 months. The Magistrate ordered that six months be served and the balance suspended upon entry into a good behaviour bond of two years.
The appellant contends the Magistrate erred in the following ways:
1.The Magistrate erred in her approach to s 26 of the Sentencing Act 2017 by failing to refer to concurrency.

2. The Magistrate failed to give a reduction of 40 per cent for one offence.
3. The sentence of 10 months was manifestly excessive.
4.The Magistrate failed to find good reason to suspend the suspend the whole term of imprisonment.

5.      The order that six months be served was manifestly excessive.
Held:
1.      The appeal is dismissed.
2.Although the Magistrate erred in her approach to s 26 of the Sentencing Act 2017, the error was in favour of the appellant. There was no error in failing to refer to concurrency.

3.      The appellant was not entitled to a reduction of 40 per cent for any offence.
4.      The sentence of 10 months was not manifestly excessive.
5.      It was open to the Magistrate to find good reason to suspend the whole sentence did not exist.
6.      The order that six months be served was not manifestly excessive.
Sentencing Act 2017 (SA) ss 26, 26(2a), 39(3), 39(3a), 11(1)(f); Criminal Law Consolidation Act 1935 (SA) s 20AA(3), 85(2); Animal Welfare Act 1985 (SA) s 13(1); Summary Offences Act 1953 (SA) s 21C(1)(a); Bail Act 1985 (SA) s 17(1), referred to.
Hili v The Queen (2010) 242 CLR 520; Bugmy v The Queen (2013) 249 CLR 571; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; Kentwell v The Queen (2014) 252 CLR 601; R v Lutz (2014) 121 SASR 144, 153; Brougham v R [2023] SASCA 75; Stenecker v Police (2014) 120 SASR 18, 22; R v Bachra [2012] SASCFC 31, applied.
R v Copeland (No 2) (2010) 108 SASR 398, 422; Cox v The King [2023] SASCA 43, considered.

HUBBARD v POLICE
[2023] SASC 182
Magistrates Appeal: Criminal

This is an appeal against sentence.
The appellant pleaded guilty in the Magistrates Court to the following offences. Two counts of Assault of a Prescribed Emergency Worker contrary to…

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 Hubbard v Police

Details

AGLC: Hubbard v Police [2023] SASC 182
Case: [2023] SASC 182
Decision Date: 22 December 2023

CaseChat Overview and Summary

In Hubbard v Police, the defendant, Mr Hubbard, appealed against his sentence in the Supreme Court of South Australia. The case arose from Mr Hubbard's conviction for several criminal offences, including assault and resisting arrest. The sentence imposed by the Magistrates' Court was deemed to be the focal point of the appeal, with Mr Hubbard contending that it was excessive. The Supreme Court was tasked with determining whether the sentence was manifestly excessive or inadequate, as well as reviewing the grounds for interference with the original sentence.

The primary legal issue the court had to decide was whether the sentence imposed was manifestly excessive. This required a consideration of the principles of sentencing, the nature and circumstances of the offence, and the appropriate range of penalties for such crimes. The court also had to examine whether the sentence was disproportionate to the gravity of the offence, taking into account the need for deterrence, denunciation, and rehabilitation. Additionally, the court had to assess whether the Magistrates' Court had appropriately exercised its discretion in imposing the sentence.

In assessing the appeal, the Supreme Court held that the Magistrates' Court had carefully considered the circumstances of the case and had exercised its discretion appropriately. The court found that the sentence imposed was within the range of penalties that could be considered appropriate for the offences committed. The court concluded that the sentence was not manifestly excessive, as it was commensurate with the severity of the crimes and the need for the punishment to serve its intended purposes. Therefore, the appeal was dismissed, and the original sentence was upheld.

The court indicated that it would hear from the parties regarding any further orders that might be appropriate, but no specific orders were made in the decision itself.

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

Ground 3 must be dismissed. Conclusion The appeal is dismissed. I will hear the parties as to any further orders.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Hubbard v Police [2023] SASC 182

Most Recent Citation

TURNER-LINDSAY v Commissioner of Police [2024] SASC 69

Cases citing this decision · 3 of 3 shown

INGLIS v Police
[2025] SASC 167 Para 16

…n [2022] SASCA 83 (S Doyle, Bleby and David JJA). [12] Ettridge v Police (SA) [2022] SASC 96 (McDonald J). [13] Hubbard v Police (SA) [2023] SASC 182 (Kimber J).…
Rankine v Commissioner of Police
[2025] SASC 163 Para 27

…failure to partially suspend the sentence resulted in an outcome that fell outside the range of permissible dispositions.[26] [26] Hubbard v Police [2023] SASC 182 at [42] (Kimber J), Turner-Lindsay v Commissioner of Police [2024] SASC 69 at [34] (Stanley J).…
TURNER-LINDSAY v Commissioner of Police
[2024] SASC 69 Para 11

…ffending and the characteristics of the offender, the failure to suspend fell outside the range of permissible dispositions. (footnote omitted). [25] [2023] SASC 182 at [42].…

View all 3 citing cases →

Cases cited in this decision · 12 of 12 shown

Brougham v The King
[2023] SASCA 75 Para 8

…rought to bear. Often the existence or otherwise of manifest excess will be a conclusion that does not permit of lengthy exposition. [8] Brougham v R [2023] SASCA 75, [28] (the Court).…
Cox v The King; R v Cox
[2023] SASCA 43 Para 31

…tence. The utilisation of s 26 is one way in which that may be achieved.[4] [3] R v Copeland (No 2) (2010) 108 SASR 398, 422 [92]. [4] Cox v The King [2023] SASCA 43, [41].…
R v Lutze
[2014] SASCFC 134 Para 9

…of the offending and the characteristics of the offender, the failure to suspend fell outside the range of permissible dispositions.[9] [9] R v Lutz (2014) 121 SASR 144, 153 [47]–[49] (Vanstone and Parker JJ). The submissions of the appellant…
Kentwell v The Queen
[2014] HCA 37 Para 7

…CLR 571, 588–589. [6] House v The King (1936) 55 CLR 499, 505; Markarian v The Queen (2005) 228 CLR 357, 370–371. [7] Kentwell v The Queen (2014) 252 CLR 601, 615 [35] (French CJ, Hayne, Bell and Keane JJ); Hili v The Queen (2010) 242 CLR 520, 539.…
Stenecker v Police
[2014] SASC 68 Para 16

…was, at least, to cause fear and distress to a partner. The same may be said of the offence involving damage to property. [11] Stenecker v Police (2014) 120 SASR 18, 22 [20] (Kourakis CJ).…
Bugmy v The Queen
[2013] HCA 37 Para 7

…r the offender and the offence’ before an appellate Court may intervene.[7] [5] Hili v The Queen (2010) 242 CLR 520, 538–539; Bugmy v The Queen (2013) 249 CLR 571, 588–589. [6] House v The King (1936) 55 CLR 499, 505; Markarian v The Queen (2005) 228 CLR 357, 370–371. [7] Kentwell v The Queen (2014) 252 CLR 601, 615…
R v BACHRA
[2012] SASCFC 31 Para 18

…As for the complaint about the failure to refer to totality, that complaint is without merit. In R v Bachra it was held:[12] [12] R v Bachra [2012] SASCFC 31 [58]–[59] (White J). The principle of totality is well established. King CJ in R v Rossi said: There is a principle of sentencing known as the principle of to…
Hili v The Queen
[2010] HCA 45 Para 7

…be ‘outside the permissible range of sentences for the offender and the offence’ before an appellate Court may intervene.[7] [5] Hili v The Queen (2010) 242 CLR 520, 538–539; Bugmy v The Queen (2013) 249 CLR 571, 588–589. [6] House v The King (1936) 55 CLR 499, 505; Markarian v The Queen (2005) 228 CLR 357, 370–371.…
R v Copeland (No 2)
[2010] SASCFC 61 Para 31

…o. The obligation is to impose a proportionate sentence. The utilisation of s 26 is one way in which that may be achieved.[4] [3] R v Copeland (No 2) (2010) 108 SASR 398, 422 [92]. [4] Cox v The King [2023] SASCA 43, [41].…
Markarian v The Queen
[2005] HCA 25 Para 7

…2010) 242 CLR 520, 538–539; Bugmy v The Queen (2013) 249 CLR 571, 588–589. [6] House v The King (1936) 55 CLR 499, 505; Markarian v The Queen (2005) 228 CLR 357, 370–371. [7] Kentwell v The Queen (2014) 252 CLR 601, 615 [35] (French CJ, Hayne, Bell and Keane JJ); Hili v The Queen (2010) 242 CLR 520, 539.…
House v R
[1936] HCA 40 Para 7

…Court may intervene.[7] [5] Hili v The Queen (2010) 242 CLR 520, 538–539; Bugmy v The Queen (2013) 249 CLR 571, 588–589. [6] House v The King (1936) 55 CLR 499, 505; Markarian v The Queen (2005) 228 CLR 357, 370–371. [7] Kentwell v The Queen (2014) 252 CLR 601, 615 [35] (French CJ, Hayne, Bell and Keane JJ); Hili v…
House v The King
63 WN 176 Para 7

…ore an appellate Court may intervene.[7] [5] Hili v The Queen (2010) 242 CLR 520, 538–539; Bugmy v The Queen (2013) 249 CLR 571, 588–589. [6] House v The King (1936) 55 CLR 499, 505; Markarian v The Queen (2005) 228 CLR 357, 370–371. [7] Kentwell v The Queen (2014) 252 CLR 601, 615 [35] (French CJ, Hayne, Bell and Keane J…

Legislation cited in this decision · 5

Sentencing Act 2017 (SA)
11(1)(f), 26, 26(2a), 39(3), 39(3a) 6 mentions (from Para 17)
Criminal Law Consolidation Act 1935 (SA)
20AA(3), 85(2) 3 mentions (from Para 2)
Animal Welfare Act 1985 (SA)
13(1) 2 mentions (from Para 2)
Bail Act 1985 (SA)
17(1) 2 mentions (from Para 2)
Summary Offences Act 1953 (SA)
21C(1)(a) 2 mentions (from Para 2)