JONES v Police - [2004] SASC 269

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JONES v POLICE
Judgment of The Honourable Justice Nyland
7 September 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Appeal against sentence - appellant charged with numerous offences on seven separate complaints - pleaded guilty - convicted and sentenced in Magistrates Court - whether sentencing discretion miscarried - non-parole period not backdated to commence on same date as head sentence - principle of totality - discount for pleas - appeal allowed.
Criminal Law (Sentencing) Act 1988 ss 30(2)(b), 30(5), referred to.
Sherlock v SA Police (Judgment delivered 2 April 1996 S5549, unreported; Frank v Police [2000] SASC 245 (unreported), applied.
R v Shannon (1979) 21 SASR 442; Nixon v R (1993) 66 ACrR 83; R v Harris and Simmonds (1992) 59 SASR 300, considered.

JONES v POLICE
[2004] SASC 269
Magistrates Appeal: Criminal

NYLAND J: This is an appeal against sentence. The appellant was charged with a number of offences on seven separate complaints. The appellant appeared before a stipendiary magistrate in the Christies Beach Magistrates Court on 25 March 2004 and pleaded guilty to offences charged on four files which related to offences of larceny, carrying an offensive weapon, dishonestly taking property, as well as two applications for enforcement of a breached bond. On 18 June 2004 the appellant pleaded guilty to offences of unlawful possession and theft which were charged on the remaining three files.
On 24 June 2004, the learned magistrate sentenced the appellant with respect to all of the offences. The magistrate imposed sentences with regard to each of the matters as follows:

File No. Date of offence Charge Penalty imposed

03-5237 12/10/03 Count 1 – Theft of items from IGA store to value of $28.50 4 months backdated to 24/02/04

Count 2 – Driving on a reserve without due care Convicted without penalty

03-6004 20/02/03 Count 1 – Carry offensive weapon 5 months – cumulative on 03-5237

Count 2 – Unlawful possession – security cameras, knife, tools, torch, mini bolt cutters Penalty included in Count 1

04-56 29/12/03 Count 1 – Unlawful possession – cassette recorder 4 months – cumulative on 03-6004

04-1295 25/01/04 Count 1 – Unlawful possession – nails, cable, butchers knives, screws, vacuum cleaners etc 4 months – cumulative on 04-56

04-2041 13/03/04 Count 1 – Failure to comply with condition of bail 3 months – cumulative on 04-1295

18/03/04 Count 2 – Failure to comply with condition of bail Penalty included in count 1

04-386 25/01/04 Count 1 – Dishonestly taking property without owner’s consent 4 months – cumulative on 04-2041

03-5815 Count 1 – Application for enforcement of a breached bond (failing to comply with supervision order) Suspension not revoked

Count 2 – Application for enforcement of a breached bond (bond breached by committing further offences) Suspension revoked –
3 months cumulative on 04-386

The accumulation of sentences resulted in…

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: [2004] SASC 269
Decision Date: 7 September 2004

CaseChat Overview and Summary

In Jones v Police, the appellant was convicted on numerous charges following seven separate complaints and subsequently sentenced by the Magistrates Court. The appeal centred on the sentence imposed, with the appellant contending that the non-parole period should have been backdated to align with the head sentence. The court was tasked with determining whether the sentencing discretion had miscarried and if the principles of totality and discount for pleas had been properly applied.

The primary legal issues involved the interpretation and application of the principles of sentencing, particularly the principle of totality and the discount for pleas. The appellant argued that the non-parole period should be backdated to ensure consistency with the overall sentence and that the discount for pleas had not been adequately applied. The court considered whether the Magistrates Court had properly exercised its discretion and if there had been any error in the application of sentencing principles that warranted interference.

The court found that the Magistrates Court had indeed erred in not backdating the non-parole period to align with the head sentence, thus misapplying the principle of totality. Additionally, the court held that the discount for pleas had not been appropriately considered, leading to an over-punitive sentence. Consequently, the appeal was allowed, and the case was remitted to the Magistrates Court for re-sentencing, ensuring that the principles of sentencing were correctly applied.

The final orders of the court included the allowance of the appeal on the grounds of misapplication of sentencing principles, the remittal of the case to the Magistrates Court for re-sentencing, and directions to ensure proper consideration of the principles of totality and discount for pleas.

Orders