Markl v Police - [2005] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MARKL v POLICE
Judgment of The Honourable Justice Besanko
15 April 2005
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against convictions recorded and sentence imposed by Magistrate – where appellant pleaded guilty to two counts of unlawful possession – where appellant’s solicitor had advised him that a term of imprisonment was unlikely if he pleaded guilty – where convictions were recorded and appellant was sentenced to six months imprisonment – whether there is a reasonable apprehension that a miscarriage of justice has occurred – whether the sentence is manifestly excessive - appeal against conviction dismissed – appeal against sentence allowed, sentence of imprisonment suspended on condition that appellant enter into a bond to be of good behaviour for two years.
Magistrates Court Act 1991 s 42; Summary Offences Act 1953 s 41; Criminal Law (Sentencing) Act 1988 s 18A; Criminal Law Consolidation Act 1935 s 86A, referred to.
Rainbird v Samuels (1972) 4 SASR 187; Stengle v Wells (Unreported 30 April 1985, judgment no S4958); R v Cranssen (1936) 55 CLR 509; Police v Mariner (2002) 222 LSJS 499; R v Perre (1986) 41 SASR 105, considered.

MARKL v POLICE
[2005] SASC 141
Magistrates Appeal

BESANKO J: This is an appeal against convictions recorded by a Magistrate and a sentence imposed by the same Magistrate. The appellant is Charles John Markl and the appeal is brought pursuant to s 42 of the Magistrates Court Act 1991.
On 14^th July 2004 the appellant was charged on complaint by the respondent with two offences. The first charge was that on 8^th October 2003 the appellant and his de facto partner, Kathy Zaparenkov-Markl, at Pinnaroo in the State of South Australia had in their possession personal property, namely a Nissan Patrol motor vehicle, which either at the time of such possession, or at a subsequent time before the making of the complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means, contrary to s 41 of the Summary Offences Act 1953 (“SOA”). I will refer to this charge as the unlawful possession of the motor vehicle charge. The second charge was that on the same date the appellant at the same place had in his possession toys, which either at the time of such possession, or at a subsequent time before the making of the complaint in respect of such possession, were reasonably suspected of having been stolen or obtained by unlawful means, contrary to s 41 of…

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 Markl v Police

Details

AGLC: Markl v Police [2005] SASC 141
Case: [2005] SASC 141
Decision Date: 15 April 2005

CaseChat Overview and Summary

In the case of Markl v Police, the appellant contested both the recording of his convictions and the sentence imposed by the Magistrate. The dispute involved the characterisation of the appellant's criminal conduct and the appropriate sentencing, taking into account his prior criminal history and the time he had already spent in custody.

The legal issues before the court were whether the Magistrate erred in characterising the offences as involving blatant dishonesty and whether the sentence imposed was appropriate given the appellant's long period of good conduct post-offence. The court had to consider the principles governing sentencing, including the importance of deterrence, rehabilitation, and the appellant's prior good behaviour.

The court held that the Magistrate was correct to rely on the prosecution’s version of the facts and characterise the offences as involving blatant dishonesty. However, the court found that the Magistrate did not adequately credit the appellant’s 11 years of good conduct. The court concluded that while the appellant's criminal record was poor, his long period of good conduct should have been given substantial weight. The court decided that the sentence should recognise both the need for deterrence and the opportunity for rehabilitation, leading to the decision to suspend the sentence on appropriate conditions.

The court dismissed the appeal against the recording of the convictions but allowed the appeal against the sentence. The court imposed a sentence of six months imprisonment, which it suspended on the condition that the appellant enter into a bond to be of good behaviour for two years, with further conditions to be determined by the parties.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

But for the fact that the appellant had spent three and a half months in custody before being sentenced and had stayed out of trouble for about 11 years, I would not be inclined to interfere with the sentence imposed by the Magistrate. The Magistrate was entitled to proceed on the prosecution’s version of the facts (R v Perre (1986) 41 SASR 105) and therefore to characterise the offences as involving blatant dishonesty. Furthermore, the Magistrate was right to characterise the appellant’s criminal record as very bad. However, I think the Magistrate failed to give substantial credit for the fact that the appellant had stayed out of trouble for about 11 years. With respect, I think he should have done that. I think that it was an appropriate case to acknowledge the period the appellant had spent in custody and to suspend a sentence of imprisonment on appropriate conditions. The period already spent in prison recognises the importance of deterrence while the suspension of the future sentence of imprisonment recognises the need to encourage the appellant’s rehabilitation bearing in mind that he had stayed out of trouble for about 11 years.Conclusion I would dismiss the appeal against the recording of the convictions. I would allow the appeal against the sentence imposed. I would impose a sentence of six months imprisonment but I would suspend it on condition that the appellant enter into a bond to be of good behaviour for two years. I will hear the parties as to other conditions of the bond and as to the appropriate orders.

Ratio Decidendi

Legal Principle Established

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