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 188Magistrates 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)…
Keep reading for free
Create a free CaseChat account to read Jones v Police and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2020] SASC 188
- Decision Date
CaseChat Overview and Summary
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
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].