Lysakowski v Police No. Scgrg-99-1035 Judgment No. S437

[1999] SASC 437

LYSAKOWSKI v POLICE

[1999] SASC 437

MAGISTRATES APPEAL

1 MILLHOUSE J.        The appellant was sentenced in the Elizabeth Magistrates Court to eight months imprisonment, suspended, for the offence of being in possession of goods reasonably suspected of being stolen.  The owner valued the goods, a motor vehicle, at $13,000, but had it insured for $9,500.  The appellant puts its value at $7,000: he paid $3,000 for it.  I need not set out the facts.  They are accurately in the learned sentencing magistrate's sentencing remarks. 
2 The police prosecutor told the magistrate that the accused had no history of dishonesty offences, although he had a criminal history.  The magistrate, however, remembered dealing with him for larceny in 1994 when the charge was proved, but he didn't record a conviction. 
3 The maximum penalty for this offence is two years imprisonment or a $8,000 fine.  I agree with the learned magistrate that imprisonment was appropriate and, as he exercised his discretion to suspend, I say nothing about that.  I do think, however, that eight months, when the maximum is only two years imprisonment, is too high.    
4 Ms Lieschke conceded it is high.  I think I can go further and say it's manifestly excessive. 
5 That being so I shall allow the appeal to the extent of reducing the term of imprisonment from eight months to five.