Ilee v Police - [2005] SASC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ILEE v POLICE
Judgment of The Honourable Justice Gray
18 February 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appeal against sentence imposed by magistrate - appellant pleaded guilty to charges of damage property, unlawfully on premises, theft, unlawful possession and breach of bond - the charge of damage property related to an incident involving the appellant kicking a gate of premises he previously leased - other charges related to the appellant attempting to remove electrical cabling from a carpark - the appellant was sentenced pursuant to section 18A to three months' imprisonment.
On appeal appellant submitted that the magistrate misdirected himself as to the facts, incorrectly understood the appellant's prior criminal record and ought to have suspended the sentence of imprisonment.
Consideration of circumstances of offending - consideration of appellant's criminal antecedents - held magistrate erred in treatment of the circumstances of the offending, the appellant's prior convictions and failure to suspend sentence - appeal allowed.
Appellant re-sentenced - consideration of personal circumstances of appellant - consideration of section 38(1) Criminal Law (Sentencing) Act 1988 (SA) - appellant sentenced to three months' imprisonment suspended on the entry into a two year supervised bond to be of good behaviour with conditions.
Criminal Law Consolidation Act 1935 (SA) s 85(3), s 134 and s 270C(1); Summary Offences Act 1953 (SA) s 17(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38(1), referred to.
Anderson v R (1993) 177 CLR 520; Weaver v Samuels [1971] SASR 116; R v Wacyk (1996) 66 SASR 530; Stephens v Police [2002] SASC 187, considered.

ILEE v POLICE
[2005] SASC 54
Magistrates Appeal
GRAY J
Introduction

This is an appeal against sentence.
On 3 December 2004 Phillip John Ilee, the appellant, pleaded guilty in the Magistrates Court to charges that:
-on 3 May 2002 he damaged property such damage amounting to not more than $2000;[1]
-on 29 March 2004:
.        he was unlawfully on premises at 176-186 Wakefield Street;[2]
.        he attempted to commit theft;[3]
.       he was in possession of articles in suspicious circumstances intending to use them to commit an offence of theft.[4]
[1] Section 85(3) of the Criminal Law Consolidation Act 1935 (SA)
[2] Section 17(1) of the Summary Offences Act 1953 (SA)
[3] Section 134 of the Criminal Law Consolidation Act 1935 (SA)
[4] Section 270C(1) of the Criminal Law Consolidation Act 1935 (SA)
Mr Ilee also admitted a breach of a good behaviour bond entered into on 17 July 2003 with respect to offending on 6 March 2003. The offences to which that bond related were property damage, larceny and unlawful possession. Mr Ilee was released on an unsupervised good behaviour bond. No term of imprisonment was fixed. It was a term…

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 Ilee v Police

Details

AGLC: Ilee v Police [2005] SASC 54
Case: [2005] SASC 54
Decision Date: 18 February 2005

CaseChat Overview and Summary

The appellant, Mr Ilee, appealed against the sentence imposed by a magistrate. He pleaded guilty to charges of damaging property, unlawfully being on premises, theft, unlawful possession, and breach of bond. The charge of damaging property related to an incident where Mr Ilee kicked a gate of premises he previously leased. The other charges were related to Mr Ilee attempting to remove electrical cabling from a car park. The magistrate sentenced Mr Ilee to three months' imprisonment under section 18A of the Criminal Law (Sentencing) Act 1988 (SA).

The legal issues the court had to decide were whether the magistrate misdirected himself as to the facts, and if there was any error in the exercise of discretion when sentencing. The court examined whether the magistrate erred in finding the facts and whether he appropriately considered Mr Ilee's criminal antecedents and personal circumstances. The appeal hinged on whether the magistrate's approach to sentencing was legally sound and whether the sentence was appropriate given the circumstances.

The court found that the magistrate misdirected himself as to the facts of the case. The court highlighted that the magistrate was bound to take the view of the offences most favourable to the accused and resolve any disputes by calling evidence. The court noted that the magistrate's language seemed to suggest a more serious set of facts than those presented in the evidence. The court also found that the magistrate did not appropriately consider Mr Ilee's criminal antecedents and personal circumstances. The court concluded that the magistrate's treatment of these factors was insufficient and that the sentence imposed was inappropriate.

The appeal was allowed, the sentence was set aside, and the matter was remitted to the magistrate for re-sentencing.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The learned sentencing magistrate convicted Mr Ilee of all offences. He imposed the one penalty of three months’ imprisonment pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA).Background The offence of damage property on 3 May 2002 occurred when Mr Ilee was asked to leave premises that he had been sharing. He refused to do so and the other tenant put Mr Ilee’s property on the street. Mr Ilee arrived home to find that some of his property had been stolen. Upset by this, he kicked the gate to the premises, thus causing damage. He later compensated the other tenant for that damage. The offences committed on 6 March 2003 related to the taking of aluminium window frames and screens from commercial premises. The offences of unlawfully on premises, attempted theft and possess article in suspicious circumstances on 29 March 2004 occurred when Mr Ilee with another person walked past a public car park and noticed some electrical cabling hanging from the roof of the car park. He formed the intention to steal the cable in order to exchange it for money. He climbed onto a wheelie bin intending to cut the cable down. How far the attempt progressed is unclear. At trial, counsel for the prosecution submitted that Mr Ilee had cut the cable loose. However, this was not the subject of evidence before the magistrate. Mr Ilee denied causing any damage to the cabling. Mr Ilee ceased his attempt when he realised that he was being observed. The witness, a security officer, telephoned his employer. The employer arrived a short time later with another security officer. Mr Ilee was detained until police arrived. On arrival, the police searched the area, located a hacksaw on top of the wheelie bin and a small torch, pair of pliers and two pairs of gloves in Mr Ilee’s possession. The police then arrested Mr Ilee. Magistrate’s Remarks The magistrate’s remarks on penalty were as follows:I take into account all the matters I am required to under the Sentencing Act. These charges of taking property, window frames and screens and electrical cable, from commercial premises no doubt resulted in causing substantial inconvenience and expense to the owners.You were placed on a bond to be of good behaviour and that was on 17 July 2003 for two years. In March you were in commercial premises again trying to take electrical cable for money. I am sympathetic to the fact that on $360 a fortnight and rent of $300 you obviously do not have enough money, so it is a very bad situation.You have a prior record for larceny offences and indeed were jailed for a year. I have been urged to suspend any period of imprisonment that I impose. There is also a relatively minor offence of an argument with you [sic] co-tenant and you kicked the door when they threw your property out. You have now paid them back, so that is now little more than a civil dispute.I impose a global penalty pursuant to Section 18A of the Criminal Law Sentencing Act for the unlawful possession and unlawfully on the premises and larceny file charges of 6 March 2003 that I am called upon to sentence you for and also for the breach of bond on 29 March this year.In view of your prior record, the relative seriousness of these offences involving damage to other’s property, in my view a gaol sentence is required. As for suspending the gaol sentence in view of the fact that the second offence was a breach of bond imposed on an offence within a year on a two year bond, in addition with your record means it is not appropriate for me to suspend it and I will gaol you for 3 months to serve.Issues on appeal

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Counsel also submitted that Mr Ilee’s difficult personal circumstances called for a compassionate approach. It was said that he needed support and supervision. These matters, it was contended, were given insufficient weight by the magistrate.Consideration of the IssuesDid the magistrate misdirect himself as to the facts? The magistrate was bound to take the view of the offences most favourable to the accused or otherwise resolve any dispute by the calling of evidence. In Anderson v The Queen, Deane, Toohey and Gaudron JJ observed:[5] If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstance as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance. It is common ground, and rightly so, that the standard of proof which rests upon the Crown in such a case in South Australia is the ordinary criminal standard, namely beyond reasonable doubt. If the Crown fails to establish the disputed circumstance of aggravation to that standard of proof, the offender must be sentenced on the basis that the circumstance of aggravation has not been shown to exist.[5] (1993) 177 CLR 520 at 536 In Weaver v Samuels, Bray CJ said:[6]The rule is that if the defendant desires to dispute circumstances of aggravation alleged in sworn evidence for the prosecution, he must do so by sworn evidence from himself or someone else; but if the aggravating matter is not sworn to, but is only alleged on the one hand and denied on the other in an unsworn form, then it is the duty of the court “to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused” [Maitland’s Case [1963] SASR 332 at 335].[6] [1971] SASR 116 at 119 On the one hand, the court should be slow to dismiss any plausible explanation for the magistrate’s choice of language. The references to “substantial inconvenience” and “damage” may have related to the offences in respect of which Mr Ilee was being re-sentenced. The word “again” in the sentence “In March you were in commercial premises again trying to take electrical cable for money” may possibly refer to Mr Ilee’s presence on commercial premises for unlawful purposes rather than the taking of electrical cable. The reference to the taking of electrical cabling and “substantial inconvenience and expense” in the same sentence, the use of the word “again” in the second paragraph of the magistrate’s remarks and the magistrate’s comment as to “the relative seriousness of these offences involving damage to other’s property” give considerable force to counsel’s contention that the magistrate proceeded mistakenly as alleged. In the circumstances, the magistrate misdirected himself as to the circumstances of the offences. Magistrate’s treatment of Mr Ilee’s Criminal Antecedents The case for concluding that the magistrate has erred in the exercise of his discretion is made compelling by his treatment of the accused’s record.