Illingworth v Police No. Scgrg-97-1196 Judgment No. S6397

[1997] SASC 6397

ILLINGWORTH V POLICE 

Magistrates Appeal: Criminal
Bollen AJ

I have not prepared, nor taken time, nor will take time to prepare, elegant and formal reasons.  I will say very little.  I think that I should promptly offer now my answer to the appeal.

I thank both counsel and congratulate each counsel on the high quality of submissions in this matter: very clear, orderly and sensible on each side, if I may say so.

I think that the Magistrate is right to accumulate.  I think that for the reasons offered by Ms Paulson.  I do not think that the sentences in themselves - in themselves - fail the totality test.

I mention that I remember steadily that the sentencing discretion is that of the Magistrate and I must just not interfere because I might have done something different. But I do think that the Magistrate fell into error in two ways, to one of which he was driven.

The first was his failure to quantify the credit which he gave, or the allowance which he made, for the pleas of guilty and contrition.  I mention that there seemed to be quite strong evidence of contrition here.

The second one was, putting it very bluntly, he took into account a conviction which does not exist.  As I say, he was driven to that error.  It was no fault of his.  He was given wrong information.

As to the first error, failure to quantify, I think it clear that the Magistrate must have given credit and allowance and reduced the sentences on the score of clear guilt and contrition.  You must also remember that busy magistrates cannot be expected to state in words everything which they have thought.  So I put aside the failure to quantify.

As to the second, I think, with all respect to the Magistrate, that, through no fault of his, the taking into account of a conviction which did not exist and, to some extent, the thinking that an earlier conviction was more recent than it was, invalidates the sentences which he has passed.

He took past record very substantially into account.  I make no adverse criticism of that; but if he had not been much concerned with past record perhaps one could pass by the mistaken reference, which I interpolate is obviously just a mistake.  But I could put that aside perhaps, but not in light of the vigorous attention in which he has, in the exercise of his discretion, shown in regard to past record.

In those circumstances, it falls to this court to assess afresh. I must remember what the magistrate, no doubt, remembered, although he did not speak of it, that one must find the least sentence which will suffice.

I mention too that imprisonment actually to be served must be a last resort.  Looking at the sentences, I think that I should reduce them each two months cumulative in lieu of four months cumulative: two months cumulative.

What then of suspension?  By the amended ground Mr Kelly complains that the Magistrate erred in not deciding to suspend sentences of imprisonment which he imposed.  The Magistrate said that imprisonment actually to be served was the only alternative he could do.

With respect, I differ.  One has to look to see if, under the section, there is good reason for suspending.  I think there is good reason to suspend.  It lies in the youth, the plea of guilty, and the contrition shown by the appellant and it is fortified by my feeling that bearing in mind that imprisonment actually to be served is the last resort, the appellant has not yet reached the last resort.

It is not time for the imposition of the last resort.  I hope it will never come.  I hope that the appellant will never again offend.  And I should mention for his benefit that if he offends again and breaks the law, he could expect very little leniency indeed.

In these circumstances, I order that the periods of imprisonment which I have fixed upon should be suspended on the appellant's entering into a recognisance to be of good behaviour in the sum of $200 for two years.  That now is the order of the court.