Ireland v Police No. Scgrg-99-720 Judgment No. S448

[1999] SASC 448

IRELAND v POLICE

[1999] SASC 448

MAGISTRATES APPEAL

1 MILLHOUSE J.        (ex tempore) There are two reasons why I allow this appeal. 
2 The first is that the learned special magistrate made a mistake as to the appellant's record.  I don't blame him for that, as he had to read a wretched computer printout, which I have always found confusing.  The magistrate thought the appellant had two convictions for larceny in 1993 when he had only one.  That is sufficient for me to conclude that his discretion in deciding not to suspend the sentence of four months imprisonment miscarried.  That allows me to exercise the discretion afresh. 
3 The second reason is that both the other men involved, all equally in it as far as I can see, have kept out of gaol.   Wood, on appeal to my brother Mullighan, had his sentence of three months imprisonment suspended, and the third man, Post, has just been put on a bond in the Adelaide Magistrates Court. 
4 It would look and it would be, quite unfair if one of the three had to serve time while the other two did not.   This principle of parity in the circumstances overrides any differences there may be in the backgrounds and personal circumstances of these men.  I may add that I think all have been extremely lucky, as Mullighan J says in his remarks on Wood's appeal (Wood v Police Judgment No. SASC 356 [1999] the going rate for an offence like this is three or four times the terms of imprisonment the learned magistrate imposed.  Now I hear that Post wasn't given a sentence of imprisonment at all. 
5 I must say that had I been sentencing, the terms of imprisonment would have been far higher and I wouldn't have been inclined to suspend them.  However, none of that matters in determining this appeal.  It will be allowed. 
6 The imprisonment for four months will be suspended on the same terms, as far as they are appropriate as Mullighan J imposed on Wood, upon the appellant entering into a bond for 18 months in the sum of $100 to be of good behaviour, to be under the supervision of a probation officer, to obey the lawful directions of the probation officer as to the place of residence and employment.