Marshall v Police - [1999] SASC 397

MARSHALL v POLICE
[1999] SASC 397

Magistrates Appeal: Criminal

MULLIGHAN J The appellant was charged on complaint with the unlawful possession on 8th November 1998 of an air compressor and four motor car tyres and rims contrary to s41(1) of the Summary Offences Act 1953. He denied the charge but was found guilty by a learned Magistrate on 6th July 1999 after a trial. He was convicted and sentenced to imprisonment for five months.
The learned Magistrate was informed that on 24th March 1998 the appellant had been convicted of offences of fraudulently obtaining prescription drugs by forging and uttering a prescription and was sentenced to imprisonment for twelve months which sentence was suspended upon the appellant entering into a bond, the term of which was eighteen months. The condition of the bond was that he be of good behaviour and that he perform 160 hours of community service.
The learned Magistrate estreated the bond and revoked the suspension of the sentence upon the application of the prosecutor with the consequence that the appellant is to serve the sentence which was suspended. It was alleged that the appellant had not undertaken all of the hours of community service. The learned Magistrate cancelled the balance of the service obligation. He ordered that the sentence of five months be served cumulatively upon the sentence of imprisonment for twelve months resulting in a total head sentence of seventeen months. He fixed a non-parole period of three months. The appellant appeals against the sentence.
The first ground of appeal is that the learned Magistrate sentenced the appellant on an erroneous factual basis. When the appellant appeared at the Magistrates Court at Port Adelaide on 24th March 1998, he was charged with four counts of knowingly, by falsely representing that he was the person named on a Medicare card and entitled to use that card, obtaining a prescription drug. He was not charged with forgery or uttering. On that occasion a learned Magistrate imposed one penalty. The appellant was sentenced to imprisonment for four months which sentence was suspended upon his entering into a bond to be of good behaviour. The term of the bond was six months and had expired before the commission of the offence of unlawful possession. On this same occasion, the appellant was also charged with eight counts of obtaining a prescription by making a false representation, contrary to s30(2) of the Controlled Substances Act 1984. He was sentenced to imprisonment for eight months which sentence was suspended upon his entering into a bond to be of good behaviour for a period of eighteen months and to undertake 160 hours of community service. It may be seen that the information about these matters given to the learned Magistrate was incorrect and the basis in sentencing was consequently incorrect. The only sentence of imprisonment activated by the revoking of the suspension was eight months and not twelve months. The appellant had not been convicted of counts of forgery and uttering.
Before considering…

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 Marshall v Police

Details

AGLC: Marshall v Police [1999] SASC 397
Case: [1999] SASC 397
Decision Date: 17 September 1999

CaseChat Overview and Summary

The case of Marshall v Police involves an appeal by the appellant, Marshall, against a sentence imposed by a learned Magistrate. Marshall was found guilty of unlawful possession of an air compressor and four motor car tyres and rims. He was sentenced to imprisonment for five months, to be served cumulatively with an earlier suspended sentence of imprisonment for twelve months, resulting in a total head sentence of seventeen months, with a non-parole period of three months. The key issues in this appeal are the accuracy of the factual basis for the sentence, the appellant's health condition, and the appropriateness of the sentence imposed.

The court found that the learned Magistrate was misinformed about the factual basis for the sentence. The Magistrate believed that Marshall had been convicted of forgery and uttering, but in fact, he was only charged with obtaining a prescription drug by making a false representation. Additionally, the court found that the Magistrate was incorrect in believing that Marshall had not completed all of the hours of community service required under the bond.

The court also considered the appellant's health condition, which the Magistrate did not fully understand. Marshall suffers from a severe back condition requiring large doses of a specific drug, MS Contin, which cannot be adequately managed in a prison environment. The opinions of two doctors were considered, which confirmed the appellant's need for continuous treatment and the difficulties of managing his condition in prison.

Lastly, the court examined the appropriateness of the sentence imposed. The Magistrate declined to exercise the discretion under s58(3) of the Criminal Law (Sentencing) Act 1988 to excuse the breach of the bond due to the nature of the offence. The court found that the Magistrate erred in not exercising the discretion under s58(4)(a) of the Act to reduce the term of the suspended sentence due to special circumstances, which included Marshall's health condition.

In light of the errors found in the sentencing process, the appeal was allowed, and the sentence imposed by the learned Magistrate was set aside. Marshall was sentenced to undertake 200 hours of community service within a period of six months and the sentence of imprisonment for eight months was reduced to a term to expire at the rising of the Court.

Orders