McCloud v Police - [2005] SASC 257

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCCLOUD v POLICE
Judgment of The Honourable Justice Layton
13 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED - POSSESSION OF PROPERTY STOLEN OR SUSPECTED TO BE STOLEN OR UNLAWFULLY OBTAINED
Appellant pleaded guilty to offence of unlawful possession -s 41 Summary Offences Act 1953 (SA)- magistrate sentenced appellant to period of 8 months imprisonment -suspended on entering a 30 month good behaviour bond-appellant appeals on grounds sentence manifestly excessive-consideration of penalties other than imprisonment- whether too much weight placed on prior criminal record- whether sufficient weight given to circumstances of offending and personal circumstances of appellant- whether magistrate erred in considering elements of the offence for theft and the offence of unlawful possession.
Sentence within penalties envisaged by Parliament for offences of this kind - prior offending relevant to the sentencing process-appropriate weight given to prior offences, the circumstances of offending, the personal and financial circumstances of appellant in deciding the appropriateness of sentences other than imprisonment- no error in consideration by magistrate of the elements of unlawful possession-sentencing an exercise of judicial discretion-Appeal dismissed.
Summary Offences Act 1953 (SA) s 41; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 13, referred to.
Dinsdale v R (2000) 202 CLR 321; Elliott v Harris (No 2) (1976) 13 SASR 516; House v R (1936) 55 CLR 499; Godfrey v SA Police [2003] SASC 294; Markarian v The Queen [2005] HCA 25; R v Doecke (1999) 205 LSJS 304; R v O'Keefe [1969] 2 QB 29; Veen v The Queen [No 2] (1988) 164 CLR 465; Wittwer v Police [2004] SASC 226, considered.

MCCLOUD v POLICE
[2005] SASC 257
Magistrates Appeal

LAYTON J: This is an appeal against sentence.
On 8 March, the appellant, Aaron McCloud pleaded guilty to the offence of unlawful possession and was sentenced to a period of 8 months imprisonment which was suspended upon him entering a 30 month good behaviour bond. The learned Magistrate declined a financial penalty being imposed and ordered only that the court fees, levy and counsel appearance fees be paid by the appellant.
The particulars of the complaint were:
On the 19^th day of July, 2004 at Christie Downs in the said State had in his possession personal property namely an overhead projector which either at the time of such possession, or at a subsequent time before the making of this complaint in respect of such possession, as reasonably suspected of having been stolen or obtained by unlawful means.
The relevant statutory provisions of the offence under the Summary Offences Act1953 (SA) (“the Summary Offences Act”) are:
41—Unlawful possession of personal property
(1)A person who has possession of personal…

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 McCloud v Police

Details

AGLC: McCloud v Police [2004] SASC 226
Case: [2005] SASC 257
Decision Date: 13 July 2005

CaseChat Overview and Summary

The appeal by the appellant, McCloud, against his sentence was heard in the South Australian Court of Criminal Appeal. The appellant challenged the sentence imposed by the Magistrate, contending it was manifestly excessive, particularly when considering the mitigating circumstances of the case. The appellant was convicted for possessing an overhead projector that had been stolen from Lonsdale Heights Primary School. The central issue was whether the sentence imposed was manifestly excessive and whether the Magistrate failed to consider non-custodial sentencing options.

The court had to determine if the Magistrate erred in not considering non-custodial sentencing options, such as a fine, a bond, or community service, instead of imprisonment. The appellant’s counsel argued that imprisonment should be a penalty of last resort and highlighted the mitigating factors, including the appellant’s responsibility for his children and the lack of a significant criminal history. The court also examined if the Magistrate appropriately considered the principle that imprisonment should be a last resort and whether the sentence was disproportionate to the offence.

The court found that the Magistrate did consider the mitigating circumstances of the case, including the appellant’s responsibility for his children and his lack of a significant criminal history. However, the court held that the Magistrate did not sufficiently consider non-custodial sentencing options, which led to the conclusion that the sentence was manifestly excessive. The court quashed the sentence and remitted the matter to the Magistrates Court for resentencing. The court emphasized that the Magistrate should have more thoroughly explored alternatives to imprisonment, given the appellant’s circumstances and the nature of the offence.

Orders

Orders of the court

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Background

Background to the litigation

Counsel for the appellant submitted that the major ground was Ground 5, namely, that the sentence was manifestly excessive and the four previous Grounds were relied on in support of his contention that the sentence was manifestly excessive.Background The background facts appear from affidavits sworn as to the matters before the Magistrate at the time of sentencing. The first is an affidavit of Andrew Heffernan sworn on 20 May 2005. The second being an affidavit of Kathryn Nicole Waite of 1 June 2005. These two affidavits reveal that the Magistrate was informed that at the time of the offence the appellant was a 36 year old man with full time custody of his two children, aged nine and six years and that he received a Supporting Parents Pension and resided in a South Australian Housing Trust home with his children. The appellant, through his counsel, submitted to the Magistrate that the appellant’s former partner had brought the projector into the home and that he did not question its origin as his partner told him that she had obtained it through “some deal with the school”. The appellant also acknowledged “with the benefit of hindsight, that he had reason to be suspicious of the origin of the projector… particularly given the lack of purchase receipt or other indicia of legitimate sale.”[1] The appellant indicated to the Magistrate that when his partner left the house she left a number of personal belongings including the projector and that he continued to use the projector. [1] Affidavit of K N Waite, solicitor for the appellant, filed 1 June 2005. The prosecutor submitted to the Court that approximately a year after the overhead projector was stolen from the Lonsdale Heights Primary School on 29 May 2003, the police received information which led them to attend the home of the appellant on Monday 19 July 2004, where they located an overhead projector. The police ascertained that the projector was the property of the Lonsdale Heights Primary School because the identification engraving on the projector was scratched out and that the appellant could not produce receipts for its purchase. The prosecutor stated that the appellant was generally found to be polite and cooperative with the police. Counsel for the appellant, who was also counsel before the Magistrate, indicated that the appellant had spent some hours in custody as a result of being apprehended on a warrant following his non-appearance in court for this offence. In submissions, counsel for the appellant highlighted the mitigating circumstances of the offence, drawing attention to the fact that the offence was in the lower end of the spectrum for offending, the only other relevant offence was eight years prior. She also submitted it was unlikely the appellant would offend again given his embarrassment over the current offence and because he had the fulltime custody of his children.Issues on AppealSentences other than imprisonment Counsel for the appellant submitted that the Magistrate erred in not having regard to a sentence other than imprisonment, for example, a fine, a bond or community service. Further, reliance was placed on the case of R v Doecke[2]. In particular the counsel contended that imprisonment is a penalty of last resort and that the Magistrate did not give a true consideration of such alternatives.[2] (1999) 205 LSJS 304.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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