MacLeod v Police

[2016] SASC 10

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MACLEOD v POLICE

[2016] SASC 10

Judgment of The Honourable Justice Bampton

10 February 2016

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES

The appellant pleaded guilty in the Magistrates Court to six offences – Magistrate sentenced the appellant to three months’ imprisonment, one month to be suspended upon entering into a bond to be of good behaviour for one year – the power to partially suspend a sentence of imprisonment pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) arises only when a sentence is more than three months but less than one year – the respondent conceded that there was an error in the sentencing process and that the matter should be remitted to the Magistrates Court for resentencing.

Held:

1. The Magistrate had no power to partially suspend the three month sentence he imposed. The power to partially suspend a sentence pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) only arises when the length of the sentence is more than three months but less than one year.

2. Appeal allowed.

3. The sentence imposed by the Magistrates Court on 3 December 2015 be set aside.

4. At the request of the parties, the matter be remitted to the Magistrates Court for resentencing.

Criminal Law (Sentencing) Act 1988 (SA) s 38(2a), referred to.
Bush v Police [2009] SASC 318; Police v D [2004] SASC 131, considered.

MACLEOD v POLICE
[2016] SASC 10

Magistrates Appeal:   Criminal

1. BAMPTON J:  Shaun MacLeod pleaded guilty in the Magistrates Court to four counts of theft, one count of illegal interference with a motor vehicle, and one count of unlawful possession.  Mr MacLeod also acknowledged that certain of his offending breached a good behaviour bond entered into in the Holden Hill Magistrates Court on 9 August 2013. 

2. The Magistrate sentenced Mr MacLeod to 11 months’ imprisonment reduced to three months on account of time spent in custody and after making an allowance for time spent on home detention bail. 

3. The Magistrate, in his remarks on penalty, stated that he had given consideration as to whether there was any basis upon which he could wholly suspend the period of three months’ imprisonment taking into account the progress Mr MacLeod had made on a treatment program and the efforts he had made towards his own rehabilitation.  The Magistrate concluded that having regard to Mr MacLeod’s previous offending history it would be inappropriate to wholly suspend the sentence.  However, the Magistrate said he was prepared to give Mr MacLeod credit for his progress and the efforts he had made towards rehabilitation by ordering that he be released from custody after serving two months.  Accordingly, he ordered that Mr MacLeod be released from custody after serving two months on a bond in his own recognisance in the sum of $500 to be of good behaviour for 12 months.

4. Mr MacLeod appealed against the sentence imposed on the grounds that it was manifestly excessive and that the Magistrate erred in not suspending the whole of the sentence of imprisonment.

5. The respondent did not concede either of these grounds but conceded the appeal on the basis that the Magistrate had erred in invoking the power pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) (the CLSA). Accordingly, by consent the notice of appeal was amended to include a third ground; that the Magistrate erred in partially suspending the sentence pursuant to s 38(2a) of the CLSA.

6. Section 38(2a) of the CLSA permits the Court to suspend part of a sentence of imprisonment if the sentence(s) to which the defendant is liable is, or are in combination, more than three months but less than one year. In such circumstances, the Court can order that the defendant serve a specific period, being not less than one month of the imprisonment and suspend the balance of the sentence on condition that the defendant enter into a bond to be of good behaviour. In this matter the Magistrate could suspend part of the sentence of imprisonment under s 38(2a) of the CLSA only if the sentence was more than three months but less than one year.[1]  The sentence imposed was exactly three months.

   [1]    Bush v Police [2009] SASC 318 at [11]; Police v D [2004] SASC 131.

7. Accordingly, I allowed the appeal and set aside the sentence. 

8. As counsel for Mr MacLeod and the respondent agreed, I made an order remitting the matter to the Magistrates Court for resentencing.

9. In summary, I made the following orders:

   1Permission to amend the notice of appeal to include the ground that the Magistrate erred in invoking s 38(2a) of the CLSA and partially suspending the sentence.

   2The sentence imposed by the Magistrates Court on 3 December 2015 is set aside.

   3The matter is remitted to the Magistrates Court for resentencing.

   4There is no order as to costs.