Maione v Police - [2007] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MAIONE v POLICE
[2007] SASC 116
Judgment of The Honourable Justice Layton
2 April 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - ABNORMAL MENTAL CONDITION
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FIRST OFFENDERS - SUSPENSION OF SENTENCE
Appeal against sentence imposed by a Magistrate - appellant pleaded guilty to 49 counts of forgery and 49 counts of uttering - appellant diagnosed as having developed into a major depressive illness by the time she was arrested - sentenced to three years imprisonment, with a non-parole period of 10 months - whether the Magistrate erred in refusing to suspend the sentence of imprisonment - whether the Magistrate failed to give sufficient consideration to the appellant's depressive illness and its relevance to her offending - whether Magistrate gave too much weight to considerations of deterrence - whether sentence should be suspended on grounds that imprisonment would be unduly harsh due to the appellant's ill health - consideration of s 38(2)(c) of the Criminal Law (Sentencing) Act - Held: Magistrate failed to consider the effect of the appellant's mental illness on her thought processes or her capacity to appreciate the gravity and significance of her offending - Magistrate failed to consider the effect of the appellant's mental illness on the weight to be given to matters of general and personal deterrence - sentence should be suspended on grounds that imprisonment would be unduly harsh due to the appellant's ill health - appeal allowed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL
Appellant also found unfit to stand trial in relation to 73 counts of fraudulent conversion - reports from three psychiatrists obtained pursuant to s 269T(2)(a) of the Criminal Law Consolidation Act 1935 - none of the reports recommended that the appellant be detained in a mental health facility - Magistrate set a limiting term of 10 months and ordered that the appellant be detained for the period of the limiting term - whether the Magistrate erred in making the order for detention - Held: Magistrate erred in making an order for detention where detention was not recommended by any of the three psychiatrists and where the Magistrate's remarks do not contain any consideration of the factors set out in s 269T - appeal allowed.
Criminal Law Consolidation Act 1935 (SA) ss 269O, 269S, 269T; Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 38(2)(c), referred to.
R v Wiskich (2000) 207 LSJS 431 ; House v R (1936) 55 CLR 499, applied.
R v Tsiaras [1996] 1 VR 398; R v Murphy (2002) SASR 574; McNamara v Barrett [2001] SASC 354; R v Goodwin (2001) 80 SASR 195; R v Davey (2006) 95 SASR 63;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maione v Police

Details

AGLC: Maione v Police [2007] SASC 116
Case: [2007] SASC 116
Decision Date: 2 April 2007

CaseChat Overview and Summary

In Maione v Police, the Supreme Court of South Australia considered an appeal against a sentence imposed by a Magistrate. The appellant had pleaded guilty to 49 counts of forgery and 49 counts of uttering. The appellant was diagnosed with a major depressive illness by the time of her arrest. The Magistrate sentenced her to three years imprisonment, with a non-parole period of 10 months. The appellant appealed on the basis that the Magistrate had failed to adequately consider her mental illness in determining the sentence, and that the sentence was unduly harsh.

The legal issues before the court were whether the Magistrate erred in refusing to suspend the sentence of imprisonment, whether the Magistrate failed to give sufficient consideration to the appellant's depressive illness and its relevance to her offending, and whether the Magistrate gave too much weight to considerations of deterrence. The court also considered whether the sentence should be suspended on the grounds that imprisonment would be unduly harsh due to the appellant's ill health, and whether the Magistrate erred in ordering the appellant's detention when none of the psychiatrists had recommended it.

The court found that the Magistrate failed to consider the effect of the appellant's mental illness on her thought processes or her capacity to appreciate the gravity and significance of her offending. The court also found that the Magistrate failed to consider the effect of the appellant's mental illness on the weight to be given to matters of general and personal deterrence. The court held that the sentence should be suspended on the grounds that imprisonment would be unduly harsh due to the appellant's ill health. The court also held that the Magistrate erred in ordering the appellant's detention when none of the psychiatrists had recommended it, and that the Magistrate's remarks did not contain any consideration of the factors set out in s 269T of the Criminal Law Consolidation Act 1935. The appeal was allowed.

Orders