LOFTES v POLICE

[2015] SASC 144

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

LOFTES v POLICE

[2015] SASC 144

Judgment of The Honourable Justice Vanstone (ex tempore)

18 September 2015

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

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS

Appeal against sentence only to correct the magistrate's misdescription of an earlier sentence upon which the magistrate's sentence was to be cumulative.

Summary Offences Act 1953 (SA) s 6A; Summary Procedure Act 1921 (SA) s 76B, referred to.

LOFTES v POLICE
[2015] SASC 144

Magistrates Appeal
Criminal

1. VANSTONE J (ex tempore):         This appeal amounts to a request that an error made by a magistrate be corrected.

2. Paradoxically, it is not an error in the sentence imposed by that magistrate, but merely an error in her description of an earlier sentence upon which the new sentence was made cumulative.

3. On 10 December 2014 the appellant was dealt with in the Magistrates Court for threatening unlawful violence contrary to s 6A of the Summary Offences Act 1953 (SA). The magistrate imposed a sentence of imprisonment of four months and ordered that the sentence be cumulative upon a sentence which the appellant was already serving, imposed in the District Court, being one of 22 months imprisonment, with a non-parole period of four months. The magistrate declined to extend the existing non-parole.

4. Subsequently, the magistrate was apparently advised, wrongly, that the pre-exisiting sentence was one of 24 months.  She purported to correct her order utilising s 76B of the Summary Procedure Act 1921 (SA).  Consequently, the record was altered from a correct one to one containing an error.  Even so, I cannot see that her Honour’s error could have affected the period which the appellant was liable to serve.  The magistrate plainly had no power or indeed wish to alter the District Court sentence.  Her Honour could equally have made her sentence cumulative on the pre-existing sentence without specifically identifying its length.  In any event, it is conceded that the magistrate’s original order was the correct one and that it should be reinstated.

5. I am unsure why the matter could not have been called back on before the magistrate to enable her to correct the record.  Mr Vadasz, for the appellant, tells me that the request to the Magistrates Court Registry for the matter to be listed again was rejected.  Be that as it may, to have lodged an appeal to this Court for the purpose seems unnecessary.

6. In any event, I propose to allow the appeal.

7. The orders I make are:

   1.the time within which an appeal may be lodged is extended to 31 July 2015;

   2.the appeal is allowed;

   3.the order made by the Magistrates Court on 10 December 2014, as amended, is set aside and in its place the following order is made:

   The appellant is sentenced to imprisonment for four months.  That sentence is to be served cumulatively upon the sentence of imprisonment imposed by Judge Stretton on 16 May 2014, that sentence being one of 22 months imprisonment.  No change to the non-parole period is effected.