MCINTEE v Police - [2022] SASC 100

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
MCINTEE v POLICE
[2022] SASC 100
Judgment of the Honourable Justice Kimber
9 September 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
The appellant appeals against a sentence imposed by a Magistrate. The appellant entered guilty pleas in respect of offences committed on 17 February 2021 (the February offences) and 6 July 2021 (the July offences). The February offences were Assault Causing Harm, Theft, Property Damage and Resist Arrest. The July offences were Breach of Bail, Serious Criminal Trespass with Intent to Damage Property and Property Damage.
After separate reductions for the pleas of guilty, the Magistrate fixed several individual sentences. One of the individual sentences was 22 days for the Theft, after a reduction of 30 per cent for the plea of guilty. The Magistrate made some sentences concurrent, arriving at a period of 12 months and 20 days. That period was reduced by one month and 19 days for time spent in custody. The Magistrate believed the appellant had spent six months and five days on home detention bail. The Magistrate stated he would give a reduction of five days for each month and gave a further reduction of 30 days. The period on home detention bail was in fact six months and fourteen days. This resulted in a total head sentence of 10 months and one day. The Magistrate declined to suspend the head sentence, but ordered it be served on home detention.
On appeal, the appellant put forward the following grounds of appeal:
1. The sentence for the Theft was manifestly excessive.
2.The Magistrate failed to give consideration the participation of the appellant in an Abuse Prevention Program.
3.The Magistrate erred in his approach to the period on home detention bail. In particular, the Magistrate understated the period on home detention; erred in not giving a reduction equivalent to the entire period on home detention bail; in the alternative, erred in not giving a greater reduction that five days for each month.

4.      A home detention sentence was manifestly excessive.
Held per Kimber J, allowing the appeal on Ground 3:
1.      The sentence for Theft was not manifestly excessive.
2.      The Magistrate did not err in failing to refer to the Abuse Prevention Report.
3.Whether to give a reduction for a period on home detention bail and, if a reduction is given, the extent of that reduction is subject to a broad discretion. The Magistrate did not err in not giving a reduction equivalent to the period on that form of bail, nor did he err in not giving a period of greater than five days for each month. The only error the Magistrate made with respect to a reduction for the period on home detention was to understate the period on home detention bail. In the circumstances of this case, the appeal must be allowed on ground…

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

AGLC: MCINTEE v Police [2022] SASC 100
Case: [2022] SASC 100
Decision Date: 9 September 2022

CaseChat Overview and Summary

The appellant in McIntee v Police appealed against his sentence in the South Australian Magistrates Court. The appellant, who had pleaded guilty to theft, was sentenced to 22 days in custody, reduced by 30 per cent due to his guilty plea, and five days of home detention. The appellant contested the sentence on three grounds: the sentence was manifestly excessive, the Magistrate failed to consider a report on his participation in an abuse prevention program, and there was an error in the calculation of the reduction for time spent on home detention bail.

The Supreme Court of South Australia considered each ground of appeal. Firstly, regarding the sentence being manifestly excessive, the Court noted that while the theft was not the most serious of its kind, it had a serious aspect as it occurred after the victim had been attacked. The Court concluded that the sentence of 22 days, after a 30 per cent reduction for the plea of guilty, was within the range of appropriate sentences for the offence and dismissed this ground of appeal. Secondly, the Court found that the Magistrate had not erred in failing to refer to the report on the appellant’s participation in the abuse prevention program, as the report had less significance than the more detailed report of Dr Begg, which was referenced in the sentencing remarks. Thirdly, the Court identified an error in the Magistrate's calculation of the reduction for time spent on home detention bail, but found that this did not constitute a significant error in the overall sentencing process.

The Supreme Court of South Australia dismissed all grounds of appeal, affirming the original sentence.

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

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Ratio Decidendi

Legal Principle Established

There is no sentencing standard for the offence of Theft. The Theft was not the most serious offence of its type, it was an opportunistic offence and the item taken had more sentimental than monetary value. Nonetheless, it had a serious aspect. Whilst care needed to be taken not to sentence the appellant for committing a robbery, nor sentence the appellant twice for Assault Causing Harm, it remained relevant the offence was committed after the victim had been attacked. After a reduction of 30 per cent for the plea of guilty, the sentence of 22 days may have been a strong one for a first offender, but I am not persuaded it was manifestly excessive. A sentence of 22 days after a discount of 30 per cent was within the range of appropriate sentences. This ground is dismissed. Ground 2 – Failure to give consideration to participation in an abuse the prevention program The appellant had been recommended for an intervention order program under s 13 of the Intervention Order (Prevention of Abuse) Act. [8] The Magistrate had been provided with a report (the report) about the participation of the appellant in that program. The report set out the appellant had been engaged in the program and demonstrated insight into appropriate strategies to regulate his behaviour. The Magistrate made no reference to the report, or its content, in his sentencing remarks. The appellant submitted the absence of reference to the report constituted a failure to take account of a ‘material consideration’, particularly given the light the report shed on the appellant’s rehabilitative prospects. [8] Intervention Order (Prevention of Abuse) Act 2009 (SA) s 13. The report did not refer to the February or July offending. Nonetheless it was provided to the Magistrate during sentencing submissions and was the subject of oral submissions. The appellant was sentenced on the same day as submissions on sentence were made. I accept the report shed some light upon the rehabilitative prospects of the appellant, but it had far less significance than the report of Dr Begg which was necessarily more detailed and made specific reference to both sets of offending. The Magistrate referred to pertinent aspects of the report of Dr Begg in his sentencing remarks. In all of the circumstances, I am not satisfied the Magistrate erred in failing to refer to the report, nor am I satisfied the Magistrate did not take it into account. A sentencing court is not obliged to refer to every relevant matter.[9] That a matter is not expressly set out as having been relied upon or considered by a sentencing court does not, of itself, indicate that it was not considered.[10] [9] Playford v Police [2017] SASC 26, [24].[10] Tazebe v Police [2013] SASC 194, [10]. This ground is dismissed. Ground 3 – Error in the approach to the period on home detention bail As set out above, before arriving at the sentence the Magistrate gave a reduction of one month and 19 days for time the appellant had spent in custody and a further reduction of 30 days for time spent on home detention. The time on home detention bail was approached in the following way. The Magistrate set out the appellant had spent six months and five days on home detention bail and then said he was ‘prepared to allow five days for each month by way of reduction, making a reduction of 30 days imprisonment’.[11] Contrary to the understanding of the Magistrate, the appellant had spent six months and 14 days on home detention bail. That error is only one of the complaints advanced by the appellant under this ground, but I will deal with that error first.[11] Remarks on Penalty of Magistrate B Dixon, 7 June 2022, p. 4.