Kearney v Police - [2017] SASC 130

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KEARNEY v POLICE
[2017] SASC 130
Judgment of The Honourable Justice Lovell
14 September 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
Appeal against fixing of a non-parole period.
The appellant was sentenced to serve a 12 month non-parole period on his own application to fix a non-parole period pursuant to s 32(3) of the Criminal Law (Sentencing) Act 1988 in the Magistrates Court.
The appellant submitted that the sentencing Magistrate erred in the factors taken into account in fixing the non-parole period. He further submitted that the non-parole period set was manifestly excessive.
Held (dismissing the appeal):
1. The Magistrate identified the matters concerning him in fixing the period and no error has been demonstrated.
2. The non-parole period of 12 months is within the Magistrate’s discretion.
Criminal Law (Sentencing) Act 1988 s 32, referred to.
R v Roberts (2016) 125 SASR 40; Hili v The Queen (2010) 242 CLR 520, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"Sentencing", "Non-Parole Period"

KEARNEY v POLICE
[2017] SASC 130
Magistrates Appeal: Criminal
LOVELL J:

Daniel Allen Kearney (“the appellant”) had his parole revoked for breaches of good behaviour and drug conditions on 16 March 2017. On 2 May 2017 Ms Frances Nelson QC, Chairperson of the Parole Board, provided a report to the Magistrate. The report related to the appellant’s breach of parole conditions and outlined his offending that gave rise to the conviction, including charges of resist police, carry an offensive weapon (x 2), drive or use motor vehicle without consent (x 2), dishonestly take property (x 3), serious criminal trespass (x 3), possess article to commit offence, aggravated assault causing harm, escape from custody and drive dangerously to cause police pursuit (“the relevant offences”). The appellant was sentenced on 26 May 2017, upon his application, to serve a 12 month non-parole period on an outstanding sentence of two years and eight months for a series of offences. The appellant submits that the 12 month non-parole period is manifestly excessive, and that the sentencing Magistrate erred in a number of respects in fixing the non-parole period.
Background
The appellant was sentenced on 30 October 2013 to three years and 11 months with a non-parole period of two years backdated to 6 September 2013. On 20 January 2015 he was released from custody on home detention. On 28 August 2015 the appellant escaped from custody, before handing himself in to the Police on 2 September 2015. On 5 November 2015 he was sentenced for the relevant offences to five years and 11 months, with a non-parole period of two years and six months, also backdated to 6 September 2013. This was made up of the three years and 11 month sentence of 2013 and an additional two years imprisonment…

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 Kearney v Police

Details

AGLC: Kearney v Police [2017] SASC 130
Case: [2017] SASC 130
Decision Date: 14 September 2017

CaseChat Overview and Summary

In this case, the appellant, Daniel Allen Kearney, appealed against the non-parole period set by the Magistrates Court. The appellant applied for a non-parole period to be fixed pursuant to section 32(3) of the Criminal Law (Sentencing) Act 1988. The appellant argued that the non-parole period was excessive and that the sentencing Magistrate erred in the factors considered in setting the non-parole period. The appellant was sentenced to a two years and eight months sentence for a series of offences, with a 12-month non-parole period.

The legal issues before the court were whether the sentencing Magistrate erred in the factors considered in fixing the non-parole period and whether the non-parole period set was manifestly excessive. The court noted that it was not to interfere with the sentencing discretion unless an error was made in the exercise of that discretion. The court further noted that it was not to interfere merely because it would have exercised its discretion in a different manner from the way in which the sentencing Magistrate did. The court concluded that the non-parole period was fixed on the basis of three positive urine tests returned to corrections and a questionable parole record. There was emphasis placed on the ‘Making Changes’ correctional program, and concerns expressed by both the Parole Board and the Magistrate about the appellant’s history of poor responses. The Magistrate identified the matters that concerned him. No error has been demonstrated.

The court dismissed the appeal, holding that the non-parole period was within the sentencing discretion of the Magistrate. The court found that the non-parole period was at the upper end of the acceptable range, but it remained within the Magistrate’s sentencing discretion. The court did not interfere with the sentencing discretion unless an error was made in the exercise of that discretion. The court held that the non-parole period was not manifestly excessive, and the appellant's submissions did not demonstrate any error on the part of the sentencing Magistrate. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Daniel Allen Kearney (“the appellant”) had his parole revoked for breaches of good behaviour and drug conditions on 16 March 2017. On 2 May 2017 Ms Frances Nelson QC, Chairperson of the Parole Board, provided a report to the Magistrate. The report related to the appellant’s breach of parole conditions and outlined his offending that gave rise to the conviction, including charges of resist police, carry an offensive weapon (x 2), drive or use motor vehicle without consent (x 2), dishonestly take property (x 3), serious criminal trespass (x 3), possess article to commit offence, aggravated assault causing harm, escape from custody and drive dangerously to cause police pursuit (“the relevant offences”). The appellant was sentenced on 26 May 2017, upon his application, to serve a 12 month non-parole period on an outstanding sentence of two years and eight months for a series of offences. The appellant submits that the 12 month non-parole period is manifestly excessive, and that the sentencing Magistrate erred in a number of respects in fixing the non-parole period.Background The appellant was sentenced on 30 October 2013 to three years and 11 months with a non-parole period of two years backdated to 6 September 2013. On 20 January 2015 he was released from custody on home detention. On 28 August 2015 the appellant escaped from custody, before handing himself in to the Police on 2 September 2015. On 5 November 2015 he was sentenced for the relevant offences to five years and 11 months, with a non-parole period of two years and six months, also backdated to 6 September 2013. This was made up of the three years and 11 month sentence of 2013 and an additional two years imprisonment arising from the November 2015 offending to be served cumulatively. On 9 March 2016 the appellant was released on parole. On 16 March 2017 the parole board cancelled his parole pursuant to s 74 of the Correctional Services Act 1982 (SA) for breaches on 23 November 2016 of good behaviour and drug conditions. This made the appellant liable to serve two years, eight months and 16 days of cancelled parole from 25 November 2016, set to expire 9 August 2019. The Court has a power to set a non-parole period under s 32(3) of the Criminal Law (Sentencing) Act 1988 (SA). On May 26 2017 the Magistrate heard an application by the appellant to fix a non-parole period under s 32(3).Non-Parole Period The same Magistrate sentenced the appellant in 2015 and 2017. In his reasons for decision dated 26 May 2017, the Magistrate noted that in making his decision he was assisted by both counsel, material provided by defence counsel and the letter of Ms Nelson QC. The Magistrate highlighted that the appellant disputed elements of Ms Nelson’s letter, specifically the top paragraph of page two of that letter, where it is alleged that the appellant had been violent toward his then partner. The Magistrate commented on the appellant’s rejection of these allegations: Notwithstanding the lack of acceptance of the contents of that paragraph, I do not think that causes me any particular concern and certainly does not stop me from proceeding to fix what I consider to be an appropriate non-parole period.[1][1] Reasons for Decision dated 26 May 2017.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This Court, on appeal, is not to interfere with a sentencing discretion unless an error was made in exercise of that discretion.[14] Similarly, this Court is not to interfere merely because it would have exercised its discretion in a manner different from the way in which the sentencing Magistrate did.[15][14] House v The King (1936) 55 CLR 499.[15] Markarian v R (2005) 228 CLR 357.Conclusion The non-parole period was fixed on the basis of three positive urine test results[16] returned to corrections and a questionable parole record. There was emphasis placed on the ‘Making Changes’ correctional program, and concerns expressed by both the Parole Board and the Magistrate about the appellant’s history of poor responses. The Magistrate identified the matters that concerned him. No error has been demonstrated.[16] The appellant was tested on 13 occasions. Three tests were positive for illicit substances. A 12 month non-parole period in the context of the remaining sentence could be seen to be at the upper end of the acceptable range. However in my view it remains within the Magistrate’s sentencing discretion. I would dismiss this ground of appeal.Order1Appeal dismissed.

Ratio Decidendi

Legal Principle Established

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