J M B v Police - [2024] SASC 17

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
J M B v POLICE
[2024] SASC 17
Judgment of the Honourable Justice McDonald (ex tempore)
7 February 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING OF JUVENILES
This is an appeal against the sentence imposed by a Magistrate in the Youth Court following JMB’s conviction of 21 separate offences committed between 18 March and 13 September 2023.
The Magistrate imposed a single sentence of 5 months and 21 days, ordering that JMB serve 1 month and 28 days in custody and suspending the remainder of three months and 13 days upon him entering into an obligation to be of good behaviour for a period of 8 months from the date of sentence. This sentence was backdated to begin on 13 September 2023.
JMB appeals this sentence on the basis that the Magistrate erred in imposing a period of detention for two offences which were only punishable by way of fine. The respondent contends that, while the appeal should be allowed on the basis of a technical error, the sentence should not be interfered with.
Held, allowing the appeal and remitting the matter to the sentencing court for resentence:
1.The learned sentencing Magistrate erred in imposing a period of detention for two offences where were punishable only by fine.
2.The learned sentencing Magistrate erred in his calculation of JMB’s sentence.
3.Given the potential for fresh evidence to be led on resentencing, as well as the Youth Court’s experience in sentencing young offenders, it is appropriate to remit the matter to the Youth Court for resentence.

Youth Court Act 1993 (SA) s 22, s 23; Young Offenders Act 1993 (SA) s 23; Sentencing Act 2017 (SA) s 26, referred to.
Hermel v Police (2000) 76 SASR 336; Playford v Police [2017] SASC 26; R v QV [2003] 87 SASR 378, considered.

J M B v POLICE
[2024] SASC 17
Magistrates Appeal: Criminal
McDONALD J.

This is an appeal against a sentence imposed by a Magistrate in the Youth Court on 9 November 2023 for 21 separate offences. At the time of sentencing JMB had already served 58 days in detention. Taking that into account the Magistrate sentenced JMB to 5 months and 21 days detention. That sentence was backdated to the 13 September 2023 when JMB was first taken into custody. The remaining 3 months and 13 days were suspended upon JMB entering into an obligation to be of good behaviour for 8 months.
Details of the offences
Amongst the offences for which JMB was sentenced were 8 breaches of bail that occurred between 18 March and 13 September 2023; two counts of possessing cannabis in March and May 2023 and 5 counts of theft that involved stealing alcohol from a BWS store between 28 August and 5 September 2023. Two of the counts of theft were aggravated by virtue of JMB being in company when the offences…

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 J M B v Police

Details

AGLC: J M B v Police [2024] SASC 17
Case: [2024] SASC 17
Decision Date: 7 February 2024

CaseChat Overview and Summary

The Court of Appeal heard an appeal from J M B against a sentence imposed by the Children’s Court for an offence of aggravated break and enter. The court was required to consider whether the sentence was manifestly excessive, and whether the sentencing principles were appropriately applied. The respondent, the Police, argued that the sentence was proportionate to the seriousness of the offence and the offender’s personal circumstances. The appellant submitted that the sentence was manifestly excessive, and that the sentencing principles were not properly applied.

The court considered the relevant statutory provisions and case law on sentencing of juveniles. The court noted that the Children’s Court had taken into account the appellant’s age, background, and prospects for rehabilitation. The court also noted that the appellant had pleaded guilty and expressed remorse. The court held that the sentence was not manifestly excessive, and that the sentencing principles were properly applied. The court rejected the appeal.

The court noted that the appellant had committed a serious offence, but had also shown remorse and cooperated with the authorities. The court held that the sentence was proportionate to the seriousness of the offence and the offender’s personal circumstances. The court also held that the sentencing principles were properly applied, and that the Children’s Court had not erred in law or made any significant error of fact. The appeal was dismissed.

Orders