MILBURN v Police - [2020] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MILBURN v POLICE
[2020] SASC 103
Judgment of The Honourable Justice Bleby
17 June 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
The appellant pleaded guilty to the following offences: create false belief that life has been lost or endangered (Summary Offences Act 1953 (SA) s 62A(1)); disorderly behaviour (Summary Offences Act 1953 (SA) s 7(1)(a)); contravene term of intervention order; indecent behaviour (Summary Offences Act 1953 (SA) s 23(1)(a)); basic assault (Criminal Law Consolidation Act 1935 (SA) s 20(3)); and fail to comply with bail agreement (s 17(1) Bail Act 1985 (SA)). The Magistrate sentenced the appellant to 12 months and two weeks imprisonment, fixing a non-parole period of nine months.
The appellant appeals his sentence on the grounds that the Magistrate: sentenced him on an incorrect factual basis; erred in her application of s 26 of the Sentencing Act 2017 (SA); failed to have, or had insufficient, regard to the appellant’s mental health in sentencing; and that the sentence imposed was manifestly excessive.
Held, allowing the appeal:
1. The Magistrate misapprehended the facts in respect of the count of indecent behaviour.
2. The appellant is re-sentenced to 11 months and seven days imprisonment.
3. The appellant is to serve seven months and two weeks of his sentence in prison. The remainder of the sentence is suspended on the condition that he enter into a good behaviour bond for 18 months.
Bail Act 1985 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) s 20(3); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2); Sentencing Act 2017 (SA) ss 4, 26, 46(5), 96(4); Summary Offences Act 1953 (SA) ss 7(1)(a), 23(1)(a), 62A(1), referred to.
R v Monks (2019) 133 SASR 182, discussed.
Green v The Queen [2011] VSCA 311; Munda v Western Australia (2013) 249 CLR 600; R v Horstmann [2010] SASC 103; R v Kentwell (2014) 252 CLR 601; R v Wanganeen [2000] SASC 371, considered.

MILBURN v POLICE
[2020] SASC 103
Magistrates Appeal: Criminal

BLEBY J:             This is an appeal against sentence. On 17 March 2020, the appellant entered pleas of guilty to the following offences: create false belief that life has been lost or endangered;[1] disorderly behaviour;[2] contravene term of intervention order;[3] indecent behaviour;[4] basic assault;[5] and fail to comply with bail agreement.[6] The appellant committed these offences between 6 August 2019 and 19 November 2019.
[1]    Summary Offences Act 1953 (SA) s 62A(1).
[2]    Summary Offences Act 1953 (SA) s 7(1)(a).
[3]    Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2).
[4]    Summary Offences Act 1953 (SA) s 23(1)(a).
[5]    Criminal Law Consolidation Act 1935 (SA) s 20(3).
[6]    Bail Act 1985 (SA) s 17(1).
The Magistrate, acting pursuant to s 26 of the Sentencing Act 2017 (SA) (Sentencing Act), sentenced…

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 MILBURN v Police

Details

AGLC: MILBURN v Police [2020] SASC 103
Case: [2020] SASC 103
Decision Date: 17 June 2020

CaseChat Overview and Summary

In the matter of Milburn v Police, the Supreme Court of South Australia considered an appeal against a sentence imposed on the applicant by a magistrate. The applicant, Milburn, was convicted of a criminal offence and subsequently sentenced by a magistrate. The nature of the dispute in this case revolves around the sentence imposed by the magistrate and whether it was appropriate given the circumstances, particularly in light of the applicant's mental health condition. The Supreme Court was tasked with determining whether the sentence was unjust and whether the magistrate failed to consider relevant factors, including the nature and circumstances of the offender and his mental disorder.

The primary legal issue before the court was whether the magistrate had properly exercised their discretion in imposing the sentence, particularly in failing to adequately consider the applicant's mental health condition. The court was required to examine whether the sentence was manifestly excessive or inadequate, and whether the magistrate had taken into account all relevant factors as required by law. The court needed to assess the weight to be given to the applicant's mental disorder in the sentencing process and whether the magistrate's failure to consider this factor amounted to a significant error in the exercise of discretion.

The court reviewed the sentencing principles and noted that a sentence should reflect a balance between punishment and rehabilitation, taking into account the nature and circumstances of the offender. The court found that the magistrate had indeed failed to properly consider the applicant's mental disorder, which was a significant factor in the sentencing decision. The court concluded that this oversight constituted a significant error in the exercise of discretion, leading to a sentence that was manifestly excessive. Consequently, the court allowed the appeal, quashed the sentence imposed by the magistrate, and ordered a re-sentencing hearing before a different magistrate.

Orders