MADDEN v Police

Case [2005] SASC 304

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MADDEN v POLICE

Judgment of The Honourable Justice White

10 August 2005

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - CUMULATIVE OR CONCURRENT SENTENCES

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE

Appeal against sentence imposed by Magistrate - appellant pleaded guilty to multiple offences dating from February to October 2004 - appellant on parole at time offences committed - Magistrate fixed a single sentence of two years imprisonment pursuant to s 18A of Criminal Law (Sentencing) Act 1988 - Magistrate ordered sentence to be served at expiry of unserved period of parole from previous sentence - whether inability of appellant to participate in Mental Health Diversion Program and Drug Court Program was a relevant consideration in sentencing process - held sentence was not manifestly excessive - fact that offences were committed on parole was an aggravating factor - appeal dismissed.

Criminal Law Consolidation Act 1935 s 85, s 134, s 169; Criminal Law (Sentencing) Act 1988 s 18A; Summary Offences Act 1953 s 41; Bail Act 1985 s 17; Correctional Services Act 1982 s 75, referred to.
R v Bartels (1986) 44 SASR 260; R v Czubak [2005] SASC 287; R v Slater (1984) 36 SASR 524; R v Malesevic [1999] SASC 321, (1999) 204 LSJS 32; R v Allen [1999] SASC 346; R v Nguyen [2004] SASC 405; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; Wessling v Police [2004] SASC 72, (2004) 88 SASR 57; R v Tran [2000] SASC 431, (2000) 211 LSJS 479; R v Becker [2005] SASC 186; R v Delphin [2001] SASC 203, (2001) 79 SASR 429; R v Smith [2002] SASC 330, (2002) 224 LSJS 134; R v McFarlane [1999] SASC 129; R v Creed (1985) 37 SASR 566; R v Bruce and Hollick [1998] SASC 6831, applied.

MADDEN v POLICE
[2005] SASC 304

Magistrates Appeal

  1. WHITE J: This is an appeal against a sentence imposed in the Magistrates Court on 23 June 2005.

  2. The appellant was sentenced to imprisonment for a period of two years for a number of offences committed in 2004.  The appellant had been on parole at the time of each offence.  The unserved portion of the previous sentence in respect of which the appellant was on parole was one year, nine months and 22 days.  Thus the effect of the sentence of the Magistrate was that the appellant had to serve three years, nine months and 22 days in prison.  The Magistrate fixed a non-parole period of two years and six months.

  3. There is one ground of appeal only, namely, a complaint that the sentence fixed by the Magistrate is manifestly excessive.

    The Offending in…

Continue reading MADDEN v Police

Sign in free to access the full text

Details
AGLC
MADDEN v Police [2005] SASC 6831
Case
[2005] SASC 304
Decision Date

CaseChat Overview and Summary

In the case of Madden v Police, the appellant appealed against a sentence imposed by a magistrate. The appellant had pleaded guilty to multiple offences that occurred between February and October 2004. At the time of the offences, the appellant was on parole. The magistrate fixed a single sentence of two years imprisonment under section 18A of the Criminal Law (Sentencing) Act 1988. The magistrate also ordered that the sentence be served at the expiry of the unserved period of parole from the previous sentence. The appeal focused on whether the inability of the appellant to participate in the Mental Health Diversion Program and Drug Court Program was a relevant consideration in the sentencing process. The court needed to decide whether the sentence was manifestly excessive and whether the fact that the offences were committed on parole was an aggravating factor.

The court found that the sentence was not manifestly excessive, and the fact that the offences were committed on parole was indeed an aggravating factor. The Magistrate was entitled to consider that the appellant’s rehabilitation would not be promoted by early release into the community. The court highlighted that the offending in 2004 occurred while the appellant was on parole, that this was not the first occasion he had committed offences while on parole, and that the 2004 offending included non-compliance with the terms of bail agreements. These factors militated against a shorter than usual non-parole period. The court concluded that none of the submissions made by the appellant on the appeal should succeed.

The appeal was dismissed. The court found that the Magistrate's decision was sound and that the appellant did not demonstrate any error in the magistrate's decision. The final orders of the court upheld the sentence imposed by the magistrate, confirming that the two-year imprisonment sentence was appropriate given the circumstances of the case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the reasons given by the Magistrate, the appellant does appear to be a poor candidate for rehabilitation. Put slightly differently, the Magistrate was entitled to consider that the appellant’s rehabilitation would not be promoted by early release into the community. In this respect, it is again relevant to note that the offending in 2004 occurred whilst the appellant was on parole, that this was not the first occasion upon which he had committed offences whilst on parole and that the 2004 offending included non-compliance with the terms of bail agreements. These factors militated against a shorter than usual non-parole period. I do not consider that any error in the Magistrate’s decision in this respect has been shown.Conclusion In my opinion, none of the submissions made by the appellant on the appeal should succeed. The appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.