Kroon v Police - [2005] SASC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KROON v POLICE
Judgment of The Honourable Justice Gray
4 March 2005
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - EVIDENCE NOT AVAILABLE AT HEARING - WHEN ADMISSIBLE
Appeal against sentence - appellant pleaded guilty before magistrate to threatening another person with a firearm - offending involved appellant firing shots from a .22 calibre rifle in the vicinity of his son - appeal on grounds that appellant was suffering from incorrectly prescribed medication at time of offending and that these matters were not known at time of sentencing.
Consideration of section 42(4) of the Magistrates Court Act 1991 (SA) and of r 97.18(b) of the Supreme Court Rules 1988 (SA) - consideration of receipt of further evidence - consideration of medical history of appellant and of medical evidence - discussion of relevant factors to be considered when re-sentencing - consideration of section 10(1) of the Criminal Law (Sentencing) Act 1988 (SA).
Held - further evidence admitted - at time of offending appellant was suffering from side effects as a result of taking incorrectly prescribed medication - the offending was out of character - appeal allowed - conviction recorded by the magistrate set aside - appellant released on a supervised three-year good behaviour bond - appellant disqualified from using or possessing any firearm until further order.
Criminal Law Consolidation Act 1935 (SA) s 47A, s 299A(1)(g); Magistrates Court Act 1991 (SA) s 42(4); Supreme Court Rules 1988 (SA) r 97.18(b); Criminal Law (Sentencing) Act 1988 (SA) s 10(1), s 16, referred to.
Re Van Beelan (1974) 9 SASR 163; R v McIntee (1985) 38 SASR 432; R v Penno [2004] SASC 354; Ryan v The Queen (2001) 206 CLR 267; R v Neal (1982) 149 CLR 305; Habra v Police [2004] SASC 430, considered.

KROON v POLICE
[2005] SASC 70
Magistrates Appeal
GRAY J:

This is an appeal against sentence.[1]
[1] An appeal against conviction was lodged but abandoned.
On 26 March 2003 the appellant, Peter Kroon, pleaded guilty before a magistrate to a charge of threatening another person with a firearm contrary to section 47A of the Criminal Law Consolidation Act 1935 (SA).[2] He was convicted and released on a two-year good behaviour bond. The bond included a condition that he be subject to supervision for 18 months. He was disqualified from holding a firearm licence and was ordered not to possess a firearm.
[2] A person who, without lawful excuse, threatens another person with a firearm, or imitation firearm, is guilty of an indictable offence. Penalty: $15 000 or imprisonment for 4 years.
Circumstances of the Offending
At about 6.00pm on 7 February 2003…

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 Kroon v Police

Details

AGLC: Kroon v Police [2005] SASC 70
Case: [2005] SASC 70
Decision Date: 4 March 2005

CaseChat Overview and Summary

The appeal in Kroon v Police involved the appellant who had pleaded guilty to threatening another person with a firearm. The incident involved the appellant firing shots from a.22 calibre rifle near his son. The appeal was based on the grounds that the appellant was suffering from side effects due to incorrectly prescribed medication at the time of the offence, and these matters were not known to the sentencing magistrate. The case was heard in the South Australian Supreme Court.

The legal issues that the court had to address included the admissibility of fresh evidence that was not available at the time of the original sentencing hearing, the interpretation of section 42(4) of the Magistrates Court Act 1991 (SA), and rule 97.18(b) of the Supreme Court Rules 1988 (SA). The court also needed to consider the appellant’s medical history and relevant medical evidence, and to determine what factors should be taken into account when re-sentencing the appellant under section 10(1) of the Criminal Law (Sentencing) Act 1988 (SA).

The court admitted the fresh evidence regarding the appellant’s medical condition, recognising that the side effects of the medication were a significant mitigating factor. The court found that the offending was out of character for the appellant and that the circumstances were exceptional enough to warrant a new sentence. The appeal was allowed, the conviction recorded by the magistrate was set aside, and the appellant was released on a supervised three-year good behaviour bond. Additionally, the appellant was disqualified from using or possessing any firearm until further order.

Orders