LEE v Police - [2006] SASC 197

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LEE v POLICE
[2006] SASC 197
Judgment of The Honourable Justice Layton
30 June 2006
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS - MAXIMUM STATUTORY PENALTY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED
Appellant appeals against sentence of three years imprisonment imposed by a Magistrate pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 - sentence imposed in respect of two counts of assault and one of carrying an offensive weapon - respondent conceded that imposition of three years imprisonment by a Magistrate was a breach of s 19 which limits the term of imprisonment which can be imposed by a Magistrate to two years - respondent submitted that the matter should be remitted to the Magistrate for re-sentencing - appellant submitted that the Magistrate had fallen into error in other respects in sentencing, and asked that the appellant be re-sentenced in this Court - Held: Magistrate erred in failing to clearly identify the factual basis for sentencing - sentence manifestly excessive in any event - appeal allowed - sentence of imprisonment quashed - appellant re-sentenced to imprisonment for six months - imprisonment not suspended.
Magistrates Court Act 1991 s 42; Summary Offences Act 1953 s 15(1)(a); Criminal Law Consolodiation Act 1935 s 39(1); Criminal Law (Sentencing) Act 1988 s 18A, s 19, referred to.
Hunt v Police [2001] SASC 145, applied.
R v Tait & Bartley (1979) 24 ALR 473, discussed.
Police v Curtis (2004) 145 A Crim R 587; R v Olbrich (1999) 199 CLR 270; R v Storey [1998] 1 VR 359, considered.

LEE v POLICE
[2006] SASC 197
Magistrates Appeal

LAYTON J: This is an appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991. On 29 March 2006 the appellant was convicted by a Magistrate of one count of carrying an offensive weapon, namely a knife, contrary to s 15(1)(a) of the Summary Offences Act 1953, and two counts of assault on a person other than a family member, contrary to s 39(1) of the Criminal Law Consolidation Act 1935.[1] The maximum penalty for count one is imprisonment for six months or a fine of $2,500. The maximum penalty for counts two and three is imprisonment for a term not exceeding two years for each offence.
[1] Since amended by Act 31/2005.
The Magistrate imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”), and sentenced the appellant to imprisonment for three years with a non-parole period of two years. The term of imprisonment was not suspended. The appellant appeals on…

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 LEE v Police

Details

AGLC: LEE v Police [2006] SASC 197
Case: [2006] SASC 197
Decision Date: 30 June 2006

CaseChat Overview and Summary

The appellant, Lee, appealed the sentence of three years' imprisonment imposed by a Magistrate. The sentence was for two counts of assault and one count of carrying an offensive weapon. The respondent, Police, conceded that the three-year sentence exceeded the two-year limit set out in section 19 of the Criminal Law (Sentencing) Act 1988. The respondent argued that the case should be sent back to the Magistrate for re-sentencing. The appellant argued that the Magistrate had made other errors in sentencing and requested that the Court re-sentence them.

The Court considered the legal issues regarding the Magistrate's authority to impose a sentence of more than two years, as well as the substantive fairness of the sentence. The Court noted that the Magistrate had exceeded their statutory authority and that the sentence was manifestly excessive. The Court found that the Magistrate had failed to clearly identify the factual basis for the sentencing decision. The Court also found that the sentence was excessive given the circumstances of the case.

The appeal was allowed, and the sentence of imprisonment was quashed. The appellant was re-sentenced to imprisonment for six months, with no suspension of the sentence. The Court emphasised the importance of clear sentencing rationales and proportionality in sentencing. The Court also highlighted the need for Magistrates to be aware of the statutory limits on their sentencing powers.

Orders