MARINER v Police - [2008] SASC 80

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
MARINER v POLICE
[2008] SASC 80
Judgment of The Honourable Justice Debelle (ex tempore)
20 March 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
Appeal against sentence – appellant pleaded guilty to assault, property damage, indecent language and resist arrest – appellant sentenced to imprisonment for 3 years with non-parole period of 19 months – sentence suspended upon appellant entering bond to be of good behaviour – whether sentence was manifestly excessive –- sentencing discretion miscarried – appeal allowed – appellant sentenced afresh – head sentence reduced to 2 years and 6 months with non-parole period of 16 months.
Criminal Law Consolidation Act 1935 s 20(3), s 85(3); Criminal Law Sentencing Act 1982 s 18A, s 19(3); Summary Offences Act 1953 s 6(2), 22(1)(c), referred to.
Hermel v Police (2000) 76 SASR 336; Miller v Police (2007) 96 SASR 240, applied.

MARINER v POLICE
[2008] SASC 80
Magistrates Appeals

DEBELLE J: This appeal against sentence is some 11 months out of time. The applicant applies for an extension of time within which to appeal. The respondent does not oppose that application. I have already ordered that the time within which the appeal should be instituted should be extended to 7 December 2007, the date on which the notice of appeal was filed.
On 7 December 2006 the appellant pleaded guilty in the Adelaide Magistrates Court to five offences, each of which had been committed on 25 October 2006. The five offences were
1Intentionally applying force directly to a woman contrary to s 20(3) of the Criminal Law Consolidation Act1935 (“the Act”). It was alleged that the offending was aggravated by the fact that the appellant knew that he was assaulting his de facto spouse;
2Intentionally and without lawful authority damaging a front door and window of a house contrary to s 85(3) of the Act;
3Intentionally and without lawful authority damaging a motor car contrary to s 85(3) of the Act;
4Using indecent language that was audible in a public place contrary to s 22(1)(c) of the Summary Offences Act1953;
5Resisting a police officer in the execution of his duty contrary to s 6(2) of the Summary Offences Act.
The appellant was unrepresented at the hearing. The magistrate sentenced the appellant to imprisonment for a period of three years with a non-parole period of 19 months. The magistrate suspended that sentence on the appellant entering into a bond to be of good behaviour for a period of three years.
The appellant has listed a number of grounds in his notice of appeal. One is sufficient to dispose of the appeal and that is the ground that the sentence was, in the circumstances, manifestly excessive.
The offending was serious. At about 3.45 pm on the afternoon of 25 October 2006 the appellant had become involved in…

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 MARINER v Police

Details

AGLC: MARINER v Police [2008] SASC 80
Case: [2008] SASC 80
Decision Date: 20 March 2008

CaseChat Overview and Summary

Mariner appealed against his sentence following a guilty plea to various charges including assault, property damage, use of indecent language, and resisting arrest. The original sentence imposed by the lower court was imprisonment for three years, with a non-parole period of 19 months. However, the sentence was suspended, contingent on the appellant entering into a bond to be of good behaviour. The primary issue before the court was whether the sentence imposed was manifestly excessive, thereby indicating a misapplication of the sentencing discretion. The court was required to determine if the original sentence failed to achieve the purposes of sentencing as outlined in the relevant legislation.

The court commenced its analysis by considering the principles of sentencing, specifically the objectives of denunciation, retribution, and deterrence, as well as the need for rehabilitation. It was noted that the sentence imposed, particularly the length of the non-parole period, seemed disproportionate to the nature and circumstances of the offences committed. The court found that the original sentence did not adequately reflect the mitigating factors presented and did not strike an appropriate balance between the various sentencing objectives. Consequently, the court concluded that the sentencing discretion had indeed miscarried, leading to the allowance of the appeal. The appeal was allowed, and the appellant was sentenced afresh with a reduced head sentence of two years and six months imprisonment, with a non-parole period of 16 months.

The court further clarified that the revised sentence was appropriate given the nature of the offences, the appellant's background, and the mitigating factors. The reduction in both the head sentence and the non-parole period was deemed necessary to ensure that the sentence aligned more closely with the overarching objectives of the sentencing process. The court emphasised that while the offences were serious, the original sentence did not adequately reflect the circumstances and mitigating factors, leading to the necessity of a revised sentence. The court's decision underscored the importance of a balanced approach in sentencing, taking into account all relevant factors to ensure just outcomes.

Orders