Jones v Police - [2020] SASC 188

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JONES v POLICE
[2020] SASC 188
Judgment of The Honourable Justice Nicholson
7 October 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Appeal against sentence.
A Magistrate convicted the appellant of three counts of breaching bail and three counts of contravening a term of an intervention order upon his pleas of guilty. It was further found that this offending breached an earlier suspended sentence bond. The appellant was sentenced to a total of eight months and two weeks imprisonment, five months of which arose from the revocation of the earlier suspended sentence. Six months was to be served in custody and the balance of two months and two weeks was suspended upon entering into a new bond to be of good behaviour for 15 months in the amount of $200.
The appellant has appealed against this sentence on two grounds; firstly, that the Magistrate erred in failing to give proper effect to subsection 10(2) of the Sentencing Act 2017 (SA) by imposing a sentence of imprisonment when it was not open to the Magistrate in the circumstances of the matter, and secondly that the sentence is manifestly excessive.
Held:
1. Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134; Bail Act 1985 (SA) s 17; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2aa); Sentencing Act 2017 (SA) ss10(2), s 26, s 120, referred to.
R v Horstmann (2010) 269 LSJS 42; Nicolle v Police (2019) 133 SASR 448; Craill v Police [2016] SASC 168; Police v Chilton (2014) 120 SASR 32; R v De Simone (1981) 147 CLR 383; Police v Cadd (1997) 69 SASR 150; Hilfy v The Queen [2020] SASCFC 72; House v The King (1936) 55 CLR 499; R v Morse (1979) 23 SASR 98; R v Buckman (1988) 47 SASR 303, considered.

JONES v POLICE
[2020] SASC 188
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 20 May 2020, the appellant pleaded guilty to three counts of breaching bail[1] and three counts of contravening a term of an intervention order,[2] and admitted breaching a suspended sentence bond. On 10 June 2020, a Magistrate ordered a total period of imprisonment, with respect to all six offences and the revoked suspended sentence, of eight months and two weeks backdated to commence on 9 February 2020 on which date the appellant had been taken into custody.
[1] Contrary to s 17 of the Bail Act 1985 (SA) with a maximum penalty of a fine of $10,000 or two years imprisonment in the circumstances of this matter.
[2] The legislative scheme provides a tiered maximum penalty based on prior breaches. These offences fall within the category of a second or subsequent offence contrary to s 31(2aa) of the Intervention Orders (Prevention of Abuse)…

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.

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Details

Case: [2020] SASC 188
Decision Date: 7 October 2020

CaseChat Overview and Summary

In the appeal of Jones v Police, the appellant sought to challenge the sentence imposed by the Magistrates Court of South Australia for multiple breaches of an intervention order. The appellant argued that the sentence was manifestly excessive and that the Magistrate had failed to properly consider the principles of sentencing as outlined in the Sentencing Act 1995 (SA). The Supreme Court of South Australia was tasked with determining whether the Magistrate erred in imposing the sentence and whether there were grounds for reducing the suspended prison term.

The primary legal issue before the court was whether the Magistrate had correctly applied the principles of sentencing under the Sentencing Act 1995 (SA). Specifically, the court needed to ascertain if the Magistrate had properly considered the statutory requirement that a term of imprisonment is only justified if it is the appropriate penalty for the particular case. Additionally, the court had to determine if the sentence imposed was manifestly excessive. The appellant contended that the Magistrate had failed to adequately consider alternative sentencing options and that the sentence was disproportionately harsh.

The court found that the Magistrate had sufficiently considered the relevant principles of sentencing and had correctly concluded that imprisonment was justified in this case. The court emphasised that while imprisonment is a sentence of last resort, it is not necessary for the Magistrate to expressly consider every available sentencing option if the reasons for choosing imprisonment are clearly articulated. The court concluded that the Magistrate had appropriately weighed the seriousness of the offending, the appellant's criminal history, and the need for personal and general deterrence. Furthermore, the court held that the sentence of three months and two weeks was not manifestly excessive, as it fell within the range of reasonable penalties for the breaches of the intervention order.

Ultimately, the appeal was dismissed, and the sentence imposed by the Magistrate was upheld. The court found no error in the Magistrate's approach to sentencing and determined that the sentence was appropriate given the circumstances of the case.

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

NICHOLSON J

For reasons already given, the offending in this case was serious and deterrence, both personal and general, is a very important consideration. It had to be made clear to the appellant that his repeated refusal to observe intervention orders will not be tolerated. After reflecting on the considerations relevant to the question of manifest excess, as explained by King CJ in R v Morse,[23] a starting point of five months was not outside the available range. The sentence, ultimately imposed for the three breaches of the intervention order, of three months and two weeks was not manifestly excessive.[23] (1979) 23 SASR 98.Conclusion There was no appeal against the revocation of the suspended sentence. However, I raised with counsel at the appeal whether a successful appeal against the sentence for the intervention order breaches might cause the consequences following from the breach of bond generally to be revisited. I received further written submissions on this issue. In the circumstances where both appeal grounds have failed, it is now unnecessary to revisit the breach of bond. In any event, the seriousness of the breaching offences and the fact that they are of the same character as previously committed including one underlying the suspended sentence bond, render revocation inevitable. No concern that the ultimate outcome would be disproportionate to the breaching offences arises. The Magistrate was correct to find that there were no proper grounds to excuse the breach. Finally, having reviewed the appellant’s personal circumstances and his further submissions there is no basis to justify a reduction of the suspended prison term pursuant to subsection 114(5)(a) of the Act.[24][24] See R v Buckman (1988) 47 SASR 303. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

The Magistrate was not required to formulaically set out the wording of subsection 10(2)(a), as long as the reason for imposing the term of imprisonment was clearly expressed and conformed with the statutory requirement. In this respect, the respondent referred to Craill v Police,[11] reaffirming Police v Chilton.[12] [11] [2016] SASC 168.[12] [2014] SASCFC 76; (2014) 120 SASR 32.Consideration of appeal ground 1 It is clear from the Magistrate’s sentencing remarks that his Honour was aware of and purported to apply section 10 of the Act. The Magistrate summarised at some length the circumstances of the various offences for which the appellant was to be sentenced, his prior criminal record and his personal circumstances and then continued as follows.I have considered the provisions of sections 9, 10 and 11 of the Sentencing Act and I am satisfied that a sentence of imprisonment is justified for the offences of breaching an intervention order. You have multiple previous convictions for the same offence and have been sentenced to imprisonment for the offences amongst others in the past. A penalty is required that provides adequate punishment and personal deterrence. Section 9 of the Act prescribes that the primary purpose for sentencing (as defined in section 3) must be the paramount consideration when sentencing a defendant. Section 11 prescribes that the court must take into account such of a number of relevant factors (paragraphs (a) to (h)) as are known to the court and also sets out a number of other sentencing considerations and requirements. Subsection 10(1) reinforces that a number of common law principles (proportionality, parity, totality and the “rule” in De Simone’s[13] case) continue to apply. Subsection 10(2) has been set out above. [13] R v De Simone [1981] HCA 31; (1981) 147 CLR 383. It should be accepted that the Magistrate did give consideration, as his Honour said, to section 10 and, in particular, subsection 10(2). In the context of his Honour’s reference to section 10 (the same sentence) he declared himself to be satisfied that a sentence of imprisonment was “justified” (the word used in subsection 10(2)(a)). This can only be understood as a reference to the subsection 10(2)(a) requirement. In a sense, the use of the word “only” in the subsection adds little, if anything to the sentencing task. Imprisonment has always been a penalty of last resort; it has always been the case that, where a sentence not involving imprisonment which properly addresses the purposes of sentencing relevant to the particular case can be fashioned, such is to be adopted. In this context, to find, as the Magistrate did, that a sentence of imprisonment was justified was to find that only a penalty of imprisonment was justified in this case. It is important that an appeal court does not too readily find error in what typically will be economical sentencing remarks, particularly where busy lists in the Magistrates Court are concerned.[14] Stanley J put the point in this way in Craill v Police.[15]Imprisonment is a sentence of last resort. It is an error not to consider all of the properly available sentencing options. However, it does not follow that proper sentencing requires a busy magistrate to expressly consider every other sentencing option before concluding that a term of imprisonment is the appropriate sentence. That would impose an undue and unnecessary burden upon sentencing magistrates. In this case I am satisfied that a term of imprisonment was the appropriate penalty given the serious nature of the offences, the circumstances in which they were committed, the appellant’s antecedents and the particular need for personal and general deterrence for offending of this kind. Reading the magistrate’s reasons as a whole it is apparent she was of the same view. There was no error in the approach taken by the magistrate.(Footnotes omitted)[14] Police v Chilton [2014] SASCFC 76; (2014) 120 SASR 32 at [19].[15] [2016] SASC 168 at [39].