Mead v Police - [2014] SASC 61

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MEAD v POLICE
[2014] SASC 61
Judgment of The Honourable Justice Sulan
21 May 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
The defendant was charged with a number of offences involving theft, unlawful possession and going equipped for the commission of an offence of dishonesty and was sentenced to a total of 15 months’ imprisonment with a non-parole period of six months’ imprisonment.
Whether Magistrate failed to give a sufficient discount for the defendant’s guilty pleas pursuant to s 10B of the Criminal Law (Sentencing) Act 1988 (SA). Whether a discount of 40 per cent should have been given.
Held (allowing the appeal):
1 Section 10B of the Criminal Law (Sentencing) Act 1988 (SA) does not require a sentencing court to expressly identify the specific reduction given in respect of a plea of guilty. However, it is desirable for a court to do so. There is a danger that by failing to identify the reduction given pursuant to s 10B, an inference can be drawn that the sentencing court has failed to have regard to a relevant consideration and the sentence is liable to be set aside.
2 Section 10B of the Criminal Law (Sentencing) Act 1988 (SA) requires a court to consider what, if any, discount is appropriate in the circumstances, having regard to s 10B, independently of any consideration of the appropriate sentence to be given having regard to other mitigatory factors.
3 The power conferred by s 10B(2) of the Criminal Law (Sentencing) Act 1988 (SA) is discretionary and does not require a sentencing court to apply the maximum discount available under the applicable sub-section.
4 The Magistrate erred by failing to have regard to s 10B of the Criminal Law (Sentencing) Act 1988 (SA).
Sentence set aside and appellant re-sentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 10B, s 10C; Criminal Law Consolidation Act 1935 (SA) s 134, s 270C; Summary Offences Act 1953 (SA) s 41(1); Criminal Law (Sentencing)(Guilty Pleas) Amendment Act 2012 (SA); Acts Interpretation Act 1915 (SA) s 22, s 34, referred to.
R v Place (2002) 81 SASR 395; R v Shannon (1979) 21 SASR 442; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Stambolis [2006] NSWCCA 56; R v Dib [2003] NSWCCA 117, considered.

MEAD v POLICE
[2014] SASC 61

SULAN J: This is an appeal against sentence. The defendant and appellant, Jason Luke Mead, was charged with a number of offences involving theft, unlawful possession and going equipped for the commission of an offence of dishonesty. He pleaded guilty and was sentenced in the Magistrates Court…

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 Mead v Police

Details

AGLC: Mead v Police [2014] SASC 61
Case: [2014] SASC 61
Decision Date: 21 May 2014

CaseChat Overview and Summary

The appeal in Mead v Police involves the defendant, who was sentenced by a Magistrate for multiple theft offences and a breach of bail. The defendant challenges the sentence on the basis that the Magistrate did not adequately discount the sentence for his early guilty pleas to some of the charges. The defendant argues that a 40% discount should have been applied under section 10B of the Criminal Law (Sentencing) Act 1988 (SA). The offences in question occurred on four separate occasions and involved theft from various stores, as well as unlawful possession of items and going equipped for theft.

The primary legal issue before the court was whether the Magistrate erred in not applying a sufficient discount to the defendant's sentence for his early guilty pleas. The court had to determine whether the Magistrate's sentence adequately reflected the statutory requirement to consider a discount for a guilty plea under section 10B of the Criminal Law (Sentencing) Act 1988 (SA). The court also needed to assess whether the overall sentence, including the non-parole period, was appropriate in the circumstances.

The court found that the Magistrate did not sufficiently consider the discount for the defendant's early guilty pleas. The court held that the statutory provision for a discount due to a guilty plea was not properly applied. The court considered the mitigating factors of the defendant's early guilty pleas and his participation in a treatment intervention program. The court concluded that a 40% discount should have been applied, resulting in a reduced sentence. The court also determined that the non-parole period needed to be recalculated to reflect the appropriate sentence.

The court allowed the appeal and re-sentenced the defendant to a total of 14 months' imprisonment with a non-parole period of six months. The new sentence and non-parole period are to commence on 21 November 2013. The court's decision emphasised the importance of correctly applying statutory discounts for early guilty pleas and ensuring that the overall sentence appropriately reflects all mitigating factors.

Orders

Orders of the court

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Background

Background to the litigation

He appeals on the ground that the Magistrate erred by failing to give sufficient discounts for the defendant’s guilty pleas to some of the offending. It is submitted that a discount of 40 per cent should have been given pursuant to s 10B of the Criminal Law (Sentencing) Act 1988 (SA).Background On 21 November 2013, the defendant was sentenced for offences which occurred on four separate occasions. It is convenient to summarise the offending by reference to the date on which it occurred. The offending of 28 November 2012[1] (the “November 2012 offending”) consisted of three counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (the “CLCA”), one count of unlawful possession contrary to s 41(1) of the Summary Offences Act 1953 (SA) and one count of going equipped for the commission of an offence of dishonesty contrary to s 270C of the CLCA. The counts of theft relate to two mobile telephones taken from a Telstra Shop on two separate occasions[2] and three pairs of sunglasses taken from OPSM. The unlawful possession concerned the possession of fragrances and magnets, and the count of going equipped concerned the possession of razor blades.[1] AMC-12-15101.[2] The first occurring the day earlier on 27 November 2012. The offending of 23 December 2012[3] (the “December 2012 offending”) involved one count of theft contrary to s 134 of the CLCA and one count of going equipped for the commission of an offence of dishonesty contrary to s 270C of the CLCA. The defendant stole a bottle of fragrance from David Jones. The defendant also had in his possession a set of pliers.[3] AMC-13-455. The offending of 30 August 2013[4] (the “August 2013 offending”) involved the theft of an electronic tablet device from the Telstra Shop, contrary to s 134 of the CLCA. [4] AMC-13-12953. The offending of 5 September 2013[5] (the “September 2013 offending”) involved the theft of a mobile phone from JB Hi Fi, contrary to s 134 of the CLCA.[5] AMC-13-15284. The Magistrate also dealt with a breach of bail committed on 13 September 2012 which concerned the provision of a urine sample which tested positive to cannabis.[6] The defendant spent time in custody after he was arrested. The Magistrate considered the time spent in custody to be a sufficient penalty and he convicted the defendant without further penalty. There is no challenge to this sentence.[6] MCHHL-13-919. On 21 January 2013, the defendant intimated that he would plead guilty to all charges in respect of the November 2012 offending and the December 2012 offending.[7] The defendant applied for and was assessed as eligible for the Magistrates Court Treatment Intervention Program. He was admitted to the Intervention Program with supervised bail conditions.[8] He participated in the comorbidity stream concerning drug abuse and mental health factors. He was discharged from the program in August 2013 and subsequently referred for sentencing. [7] Guilty pleas in respect to the November 2012 offending were entered on 3 June 2013 and guilty pleas in respect to the December 2012 offending were entered on 25 September 2013.[8] Criminal Law (Sentencing) Act 1988 (SA), s 19B.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The result of the cumulative sentences is a total head sentence of 14 months’ imprisonment. I would not interfere with the non-parole period fixed by the Magistrate. I would fix a non-parole period of six months.Conclusion I would allow the appeal and sentence the defendant to a total of 14 months’ imprisonment with a non-parole period of six months’ imprisonment. The sentence and non-parole period are to commence on 21 November 2013.

Ratio Decidendi

Legal Principle Established

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