HUBBARD v POLICE - [2004] SASC 377

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HUBBARD v POLICE
Judgment of The Honourable Justice White
30 November 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - UNLAWFUL USER OR POSSESSION OF MOTOR VEHICLE
Appellant pleaded guilty to three counts of illegal use and one count of larceny - Magistrate sentenced appellant to twenty months imprisonment - Appellant also serving sentence imposed by District Court for similar offences - Failure of Magistrate to identify notional sentences for each offence when imposing single penalty not appellable error - Sentence not manifestly excessive when considered alone - Magistrate erred in failing to reduce sentence having regard to principle of totality - Sentences imposed by District Court also should have been considered under principle of totality - Appeal allowed - Sentence reduced to 15 months imprisonment.
Magistrates Court Act 1991, s 42; Criminal Law Consolidation Act 1935, s 86, s 131, s 134; Criminal Law (Sentencing) Act 1988, s 18A, s 53; Supreme Court Rules 1987, Rule 96C.02, referred to.
R v Major (1988) 70 SASR 488; R v Symonds [1999] SASC 217; R v LLK (2003) 231 LSJS 458; R v Place (2002) 81 SASR 395; R v Bruce and Hollick (1998) 71 SASR 536; Postiglione v The Queen (1997) 189 CLR 295, applied.
R v Kelly [2000] SASC 293; R v Elliott (2001) 121 A Crim R 254, considered.

HUBBARD v POLICE
[2004] SASC 377
Magistrates Appeal
WHITE J
Introduction

This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991 (SA), against a sentence imposed by a Magistrate on 25 March 2004.
The appellant pleaded guilty to three counts of illegal driving or use of a motor vehicle, contrary to s 86(a) of the Criminal Law Consolidation Act 1935 (the “CLCA”), and to one count of larceny, contrary to s 134 of the CLCA. The latter offence was wrongly described on the Magistrates Court Information as being against s 131 of the CLCA. No point was made about that error before the Magistrate or on the appeal.
The appellant was unrepresented in the Magistrates Court. The Magistrate twice cautioned the appellant about the desirability of representation. On each occasion the appellant indicated that he did not want to obtain legal advice or legal representation. The appellant was represented by counsel on the appeal.
In respect of the four offences the Magistrate imposed, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, a single sentence of imprisonment for 20 months. That sentence was expressed to commence at the expiration of another sentence of imprisonment, being for six years, four months and 16 days, which had been imposed by the District Court on 23 December 2003. That sentence related to offences committed on and after 10 March 2002 ie, after the commission of…

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 [2004] SASC 377
Case: [2004] SASC 377
Decision Date: 30 November 2004

CaseChat Overview and Summary

The case of Hubbard v Police involves the appellant, who pleaded guilty to three counts of illegal use of a motor vehicle and one count of larceny. The Magistrate sentenced the appellant to twenty months imprisonment, a term which was to be served concurrently with a sentence imposed by the District Court for similar offences. The appellant appealed the sentence on the grounds that the Magistrate failed to identify the notional sentences for each offence when imposing a single penalty and did not reduce the sentence in accordance with the principle of totality. The Court of Appeal was required to determine whether the Magistrate's failure to identify notional sentences and to apply the principle of totality constituted an error of law and, if so, whether the sentence was manifestly excessive.

The Court of Appeal held that while the failure of the Magistrate to identify notional sentences for each offence when imposing a single penalty was not an appellable error, the sentence was not manifestly excessive when considered alone. However, the Court found that the Magistrate had erred in failing to reduce the sentence in accordance with the principle of totality. The principle of totality requires that the cumulative effect of concurrent sentences imposed for related offences be taken into account when determining the appropriate sentence. The Court further held that the sentences imposed by the District Court should also have been considered under the principle of totality. Accordingly, the appeal was allowed, and the sentence was reduced to fifteen months imprisonment, with a non-parole period of three years, nine months and 11 days.

In light of the above, the Court of Appeal granted the appellant an extension of time to institute the appeal and allowed the appeal on the basis of the errors identified. The Court substituted the sentence of imprisonment of 20 months imposed by the Magistrate with a sentence of imprisonment of 15 months, to commence at the expiry of the sentence fixed by the District Court on 23 December 2003. The Court also set aside the non-parole period fixed by the Magistrate and substituted in its stead a non-parole period of three years, nine months and 11 days. The remaining orders of the Magistrate were to stand.

The orders of the Court were: (1) an extension of time for institution of the appeal to 13 August 2004 was granted; (2) the appeal was allowed; (3) the orders of the Magistrates Court imposing a sentence of imprisonment of 20 months were set aside and in lieu thereof a sentence of imprisonment of 15 months was imposed; (4) the order of the Magistrates Court extending the non-parole period to a period of four years was set aside and in lieu thereof an order fixing a non-parole period of three years, nine months and 11 days was imposed; and (5) the remaining orders of the Magistrate were to stand.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As noted above, at the time of sentencing by the Magistrate the appellant was unrepresented. On 3 April 2004 (whilst still within the 14 day appeal period) the appellant wrote from the Yatala Labour Prison to the Clerk of the Magistrates Court stating that he did wish to appeal and setting out some grounds of the proposed appeal. He requested assistance in the lodgement of the appeal. It is unclear what happened in relation to that request. The appellant wrote again on 23 May 2004 to a Clerk of the Court. Again it is unclear what happened in relation to that request. In any event, it seems that in July 2004 or early August 2004 the appellant was granted legal aid and the notice of appeal was filed shortly thereafter. Although the period of extension sought in this case is reasonably long, the appellant has provided a reasonable explanation for the delay. The respondent has not alleged any prejudice as a result of the delay. Having regard to the view which I have taken of the merits of the appeal, I do think it is appropriate for an extension of time to be granted. I propose therefore to grant the appellant an extension of time in which to institute the appeal to 13 August 2004.Conclusion For the reasons which I have outlined above, I propose to grant the extension of time. I allow the appeal and will substitute for the sentence of imprisonment of 20 months imposed by the Magistrate a sentence of 15 months, which sentence is to commence at the expiry of the sentence fixed by the District Court on 23 December 2003. I will set aside the non-parole period fixed by the Magistrate and substitute in its stead a non-parole period of three years, nine months and 11 days. The orders of the Court are:1.Extension of time for institution of the appeal to 13 August 2004 is granted.2.The appeal is allowed.3.The orders of the Magistrates Court imposing a sentence of imprisonment of 20 months are set aside and in lieu thereof a sentence of imprisonment of 15 months is imposed.4.The order of the Magistrates Court extending the non-parole period to a period of four years is set aside and in lieu thereof an order fixing a non-parole period of three years, nine months and 11 days is imposed.5.The remaining orders of the Magistrate are to stand.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.