LENNON v POLICE

[2010] SASC 231

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

LENNON v POLICE

[2010] SASC 231

Judgment of The Honourable Justice Vanstone (ex tempore)

23 July 2010

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - ORDERS GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCE DURING UNEXPIRED SENTENCE - OFFENCE COMMITTED WHILE ON PAROLE OR PROBATION

Appeal against sentence - offences committed while appellant on parole - appellant became liable to serve unexpired balance of parole - magistrate failed to comply with the legislative requirements in relation to sentence.

Held:  appeal allowed - sentence set aside - matter remitted to the Magistrates Court for rehearing.

Correctional Services Act 1982 s 75; Criminal Law (Sentencing) Act 1988 s 31(2), s 32(2), referred to.

LENNON v POLICE
[2010] SASC 231

Magistrates Appeal (ex tempore)

1. VANSTONE J:     On 9 July 2009 a magistrate sentenced the appellant for serious criminal trespass, theft, three counts of damaging property and three counts of illegal interference with a motor vehicle.  The magistrate imposed one sentence of three years imprisonment with a non‑parole period of 23 months.

2. At the time of the commission of the offences, the appellant was on parole. That meant that upon being sentenced for imprisonment for the new offences, and that sentence not being suspended, the appellant became liable to serve the balance of the unexpired parole, s 75 Correctional Services Act 1982. The new sentence had to be made cumulative upon the unexpired balance, s 31(2) Criminal Law (Sentencing) Act 1988.

3. Then in fixing a non‑parole period the magistrate was obliged to “have regard to the total period of imprisonment … that the person is by virtue of the new sentence and the balance of the previous sentence, liable to serve”: s 32(2) Criminal Law (Sentencing) Act.

4. In proceeding to impose one sentence which purported to take into account the unexpired part of the previous sentence and the sentence for the new offences, the magistrate failed to comply with these legislative requirements.

5. It is conceded by counsel for the respondent, Ms E Telfer that the appeal must be allowed and that the appellant must be resentenced.

6. It seems that the appellant is soon to come before the District Court in relation to sentencing for other matters.  It appears that the District Court judge who is to hear these matters may well be prepared to deal with the current sentence as well and that course would, in my view, be appropriate.

7. With the concurrence of counsel I propose to remit the matter to the Magistrates Court for resentencing but indicate that the matter should be referred to the District Court.

8. Accordingly the orders I make are:

   1.     extend the time within which to appeal to 21 April 2010;

   2.     allow the appeal;

   3.     set aside the sentence imposed by the magistrate;

   4.remit the matter to the Magistrates Court for rehearing with the advice that the matter should be forthwith sent to the District Court upon a call for it being made.