HURST v POLICE - [2014] SASC 52

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HURST v POLICE
[2014] SASC 52
Judgment of The Honourable Justice David
15 April 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appeal against sentence - appellant pleaded guilty to two counts of serious criminal trespass in a place of residence with intent to commit theft and two counts of theft – appellant entered two residences and stole property, including cash and a television- appellant sentenced to 11 months imprisonment, 9 months of which was suspended upon the appellant entering into a bond to be of good behaviour for nine months – the appellant was required to serve two months of the sentence immediately.
Whether magistrate erred in not wholly suspending the term of imprisonment imposed.
Held: Magistrate has erred by failing to consider the question of the appropriate length of the head sentence independently of any questions of suspension – magistrate has erred by tailoring the head sentence to allow for the operation of section 38(2a) of the Sentencing Act – appeal allowed – sentence of magistrate set aside – appellant resentenced to a head sentence of 11 months, which sentence is wholly suspended on the appellant entering into a two year good behaviour bond in the sum of $750.
Criminal Law Consolidation Act 1935 170(1); Criminal Law (Sentencing) Act 1988 s 38, referred to.

HURST v POLICE
[2014] SASC 52
Magistrates Appeal: Criminal
DAVID J:
Introduction

This is an appeal against sentence.
The appellant pleaded guilty to two counts of serious criminal trespass in a place of residence with intent to commit theft, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (CLCA) and two counts of theft contrary to s 134 CLCA.
The four offences related to two separate incidents:
(a)On 10 August 2012 the appellant entered a home at Elizabeth Park. While at the property he stole a television. That offending was the subject of one count of serious criminal trespass and one count of theft.
(b)On 13 August 2012 the appellant entered a home at Craigmore. Whilst at the property he stole $600 in cash and a number of items. That offending was the subject of the second count of serious criminal trespass and the second count of theft.
On 1 November 2013 he pleaded guilty to all four counts and submissions were made on his behalf. On 22 January 2014 the Sentencing Magistrate imposed a single penalty pursuant to s 18A of the Criminal Law Sentencing Act 1988 (Sentencing Act) of 11 months imprisonment, back-dated to 6 January 2014, nine months of which were suspended upon the appellant entering into a bond to be of good behaviour for nine months. Two months were required to be served immediately.
The appellant was incarcerated for a…

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 HURST v POLICE

Details

AGLC: HURST v POLICE [2014] SASC 52
Case: [2014] SASC 52
Decision Date: 15 April 2014

CaseChat Overview and Summary

Hurst v Police involves an appeal against a sentence imposed by a magistrate in South Australia. The appellant pleaded guilty to two counts of serious criminal trespass with intent to commit theft and two counts of theft, having entered two residences and stolen property, including cash and a television. He was sentenced to 11 months imprisonment, with 9 months suspended upon entering a bond to be of good behaviour for nine months, and was required to serve two months immediately.

The legal issues in this appeal revolve around the Magistrate's approach to sentencing, particularly concerning the use of Section 38(2a) of the Sentencing Act, which allows for the suspension of a sentence. The appeal hinges on whether the Magistrate erred in her sentencing approach by considering the possibility of suspending the sentence before determining the appropriate length of the term of imprisonment. The appeal further contends that the sentence was too lenient, given the nature of the offences.

The court found that the Magistrate had indeed erred in her sentencing approach by considering the possibility of suspending the sentence before determining the appropriate length of the term of imprisonment. The court emphasised that the length of the sentence should be considered independently of any questions of suspension. The court further noted that the practice of bargaining about sentencing options between counsel and the bench should be discouraged. Consequently, the appeal was allowed, and the sentence was set aside. In re-sentencing the appellant, the court imposed a term of 11 months imprisonment for all four offences, wholly suspended on the appellant entering a good behaviour bond in the sum of $750 for a period of two years.

This decision highlights the importance of adhering to a structured approach in sentencing, where the length of imprisonment is determined before considering suspension, and underscores the need for discouraging bargaining practices in court proceedings. The final orders of the court reflect a balanced consideration of the appellant’s circumstances, including his employment status, family responsibilities, and the time elapsed since his last serious court appearance.

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

Ms Schwarz for the respondent submits, quite straightforwardly, that if Mr Mead’s interpretation of the Magistrate’s sentencing remarks is correct, then it would evince error. She however does not agree with Mr Mead’s interpretation and further argues that the sentence was a moderate one and the Magistrate’s exercise of the discretion to use s 38(2a) does not indicate any substantial error. Conclusion I have considered the learned Magistrate’s sentencing remarks carefully and interpret them in a similar manner to that of Mr Mead. In my view, it was incumbent upon the Magistrate to consider the question of the length of the sentence quite independently of any questions of suspension. The Magistrate has erred in not doing that. Although she considers the general question of whether the term of imprisonment should be less than 12 months, that was obviously for the purpose of considering the option of the use of s 38(2a). Such consideration should only have been considered after the term of imprisonment has been set. If the term was too great so as to preclude the use of s 38(2a) then the Magistrate would have to consider whether it was appropriate in the circumstances to suspend the sentence fully, pursuant to s 38(1). In the difficult task of sentencing I do not want to discourage vigorous discussion between counsel and the bench, but it appears to me to be a dangerous and inappropriate practice if it descends into a position of bargaining about sentencing options. Without further information I do not say that has occurred here and the material that I have before me is such that this cannot be a basis for my present decision. However, if that is a practice that has developed, it should be discouraged. I find that the Magistrate has erred in her sentencing approach and the exercise of her discretion flawed. I allow the appeal and set aside the sentence. I turn to the question of re-sentencing. Re-Sentencing Both counsel indicated to me that if I were to allow the appeal all submissions on re-sentencing have been made. I take into account that the appellant is in full employment, is still a young man of 24 years and has a family. I also take into account that his last serious relevant Court appearance was when he was a youth some nine years ago. In exercising my discretion, allowing for the short period of time he spent in prison, I would set one term of 11 months imprisonment for all four offences pursuant to s 18A of the Sentencing Act and I would wholly suspend that pursuant to s 38 of the Sentencing Act on entering into a good behaviour bond in the sum of $750 for a period of two years. The term of sentence will commence from today.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.