MALLETT v Police - [2007] SASC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules)
MALLETT v POLICE
[2007] SASC 102
Judgment of The Honourable Justice Kelly
23 March 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT
Appeal against re-sentencing of Appellant to 22 months and 9 days with a non-parole period of 17 months and 9 days. Original sentence imposed on 22 September 2006 - Magistrate subsequently re-listed matter and re-adjusted sentence by adding unexpired balance of parole to original head sentence and non-parole period.
Whether Magistrate empowered to recall the sentence. Whether Magistrate had regard to total period of imprisonment Appellant required to serve in fixing the non-parole period upon re-sentencing.
Appeal allowed. Appellant re-sentenced.
Correctional Services Act 1982 s75; Criminal Law (Sentencing) Act 1988 s9A; Summary Procedure Act s76A, s76B, referred to.
Tran v Police unreported judgment S6891 2 October 1998; Moore v Police [2006] SASC 324; Police v Alikaris [2000] SASC 163; Moore-McQuillan v WorkCover Corporation unreported judgment S6671 6 May 1998; Adams v Ditman [2001] SASC 115, considered.

MALLETT v POLICE
[2007] SASC 102

This is an Appeal against a sentence imposed by a Magistrate on 24 October 2006.
The Notice of Appeal was filed out of time and the appellant seeks an extension of time. The Notice of Appeal identified one ground of appeal namely that the non-parole period set by the Magistrate was manifestly excessive in all of the circumstances.
This Appeal arises as a result of an unfortunate error which was made, by the Parole Board in advising the Court, at the time of sentencing, the amount of unexpired balance of parole liable to be served by the appellant for the purposes of s75 of the Correctional Services Act. In order to understand how that error tainted the sentencing process it is necessary to look at the chronology of events.
The Chronology of Events.
On 22 September 2006 the Magistrate sentenced the appellant on the following matters.
1.An assault committed on 21 August 2005.
2.4 breaches of bail committed on 17 November, 19 November, 20 November, and 29 December 2005 respectively.
3.Breach of a suspended sentence bond entered into on 9 September 2005 in respect of an offence of driving whilst disqualified which offence was committed on 15 January 2005.
4.Breach of a suspended sentence bond entered into on 13 September 2005 in respect of an offence of damaging property which was committed on 18 February 2005.
In the case of both of the breaches of bonds the Magistrate revoked the suspension of the sentence and imposed a term of imprisonment for six months in each case. She ordered that both those terms be served concurrently.
She imposed a penalty of nine months imprisonment in respect of the breaches of bail and the assault, to be served cumulatively upon the period of six months imposed in respect of the breaches of bonds.
The resulting period of fifteen months imprisonment was reduced by two…

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.

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Details

Case: [2007] SASC 102
Decision Date: 23 March 2007

CaseChat Overview and Summary

Mallett appealed against his re-sentencing by the Magistrates Court of Victoria to a term of imprisonment of 22 months and 9 days with a non-parole period of 17 months and 9 days. The original sentence had been imposed on 22 September 2006. Subsequently, the magistrate re-listed the matter and re-adjusted the sentence by adding the unexpired balance of parole to the original head sentence and non-parole period. Mallett contended that the magistrate was not empowered to recall the sentence and that the magistrate had not had regard to the total period of imprisonment that he required to serve in fixing the non-parole period upon re-sentencing.

The Court had to determine whether the magistrate was empowered to recall the sentence and whether the magistrate had regard to the total period of imprisonment that Mallett required to serve in fixing the non-parole period upon re-sentencing. The Court held that the magistrate had the inherent jurisdiction to correct an illegal or improper sentence, including a sentence that was palpably excessive. The Court further held that the magistrate had not erred in re-sentencing Mallett by adding the unexpired balance of parole to the original head sentence and non-parole period. However, the Court found that the magistrate had not had regard to the total period of imprisonment that Mallett required to serve in fixing the non-parole period upon re-sentencing. The Court concluded that the re-sentence was palpably excessive and remitted the matter to the Magistrates Court for re-sentencing.

The appeal was allowed. The Court re-sentenced Mallett to a term of imprisonment of 20 months with a non-parole period of 15 months. The Court ordered that Mallett be given credit for time served.

Orders