MILE v Police - [2007] SASC 156

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MILE v POLICE
[2007] SASC 156
Reasons for Decision of The Honourable Justice Sulan
7 May 2007
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - INJURY OR DAMAGE TO PROPERTY
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY - COMPENSATION - SOUTH AUSTRALIA - GENERALLY
Appeal against sentence - appellant pleaded guilty to damaging property, contrary to Criminal Law Consolidation Act 1935 (SA) s 85(3) - Magistrate sentenced appellant to two months' imprisonment, suspended upon appellant entering into a bond - conditions of the bond required appellant to be of good behaviour and pay compensation - Held: Appeal allowed.
Whether Magistrate erred in respect of the factual basis upon which appellant sentenced - Held: Magistrate imposed sentence on erroneous factual basis - sentence set aside - whether relevant facts disputed by prosecution at first instance - whether matter should be remitted to Magistrates Court for disputed facts hearing - Held: Relevant facts not challenged by prosecution at first instance - no basis to remit.
Whether sentence of imprisonment manifestly excessive - whether condition of a bond to pay compensation forms part of sentence - whether compensation order made pursuant to Criminal Law (Sentencing) Act 1988 (SA) s 53 forms part of sentence - whether requirement to pay compensation to be taken into account in determining penalty - Held: Sentence of imprisonment not justified - imposition of compensation order, either as a term of a bond or as an order made by the court, is part of any sentence imposed - appellant re-sentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 3, s 10(1)(f), s 11, s 42(1)(g), s 53; Criminal Law Consolidation Act 1935 (SA) s 85(3), referred to.
Brooks v Police (2000) 76 SASR 279; [2000] SASC 66, applied.

MILE v POLICE
[2007] SASC 156
Magistrates Appeal
SULAN J
Introduction

This appeal raises the question of whether, if a person receives a suspended sentence or, alternatively, is released upon a bond requiring the person to appear for sentence if called upon, and a condition of the bond, requires the defendant to pay compensation for damage caused in the course of committing the offence, the court must have regard to the order for payment of compensation or the agreement to pay compensation in determining the penalty.
A related question is whether a compensation order pursuant to s 53 of the Criminal Law (Sentencing) Act 1988 (“the Act”) forms part of the sentence of the court as defined in s 3(1) of the Act.
Background
The appellant pleaded guilty to knowingly producing cannabis, contrary to s…

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 MILE v Police

Details

AGLC: MILE v Police [2007] SASC 156
Case: [2007] SASC 156
Decision Date: 7 May 2007

CaseChat Overview and Summary

The case of MILE v Police involved an appeal against the sentence imposed on the appellant for damaging property. The appellant pleaded guilty to the offence under the Criminal Law Consolidation Act 1935 (SA) and was sentenced to two months' imprisonment, suspended upon the appellant entering into a bond. The bond required the appellant to be of good behaviour and pay compensation of $3500. The primary issue for the court was whether the Magistrate erred in sentencing the appellant based on an erroneous factual basis and whether the sentence of imprisonment was manifestly excessive. Additionally, the court had to determine whether the compensation order formed part of the sentence and if it should be taken into account when determining the penalty.

The court found that the Magistrate imposed the sentence on an erroneous factual basis, as the prosecution did not dispute the extent of the damage at the first instance. Therefore, the sentence was set aside. The court further held that the imposition of a compensation order, either as a term of a bond or as an order made by the court, is part of any sentence imposed. The appellant was subsequently re-sentenced.

The court concluded that the sentence of imprisonment was not justified, and the appellant was re-sentenced. The compensation order made pursuant to s 53 of the Criminal Law (Sentencing) Act 1988 (SA) was considered part of the sentence, and the requirement to pay compensation was taken into account when determining the penalty. The appeal was allowed, and the sentence was set aside, with the matter to be re-sentenced.

The court ordered that the sentence of imprisonment be set aside and that the appellant be re-sentenced, taking into account the compensation order as part of the sentence.

Orders

Orders of the court

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Background

Background to the litigation

A related question is whether a compensation order pursuant to s 53 of the Criminal Law (Sentencing) Act 1988 (“the Act”) forms part of the sentence of the court as defined in s 3(1) of the Act. Background The appellant pleaded guilty to knowingly producing cannabis, contrary to s 32(1)(a) of the Controlled Substances Act 1984 (“CSA”). When police attended at a property at Athelstone which had been rented by the appellant they located seven cannabis plants. Section 32(5)B(a)(iii) of the CSA provides that if the number of plants involved in the commission of the offence is less than twenty plants, then the maximum penalty for the offence is $2000 or imprisonment for two years, or both. Subsection (6) provides:Where a person is found guilty of an offence involving cultivation of not more than the prescribed number of cannabis plants and the court is satisfied that the person cultivated the plants solely for his or her own smoking or consumption, the person is liable only to a penalty not exceeding $500. The prescribed number of plants is ten.[1][1] Regulation 8, Controlled Substances (Prohibited Substances) Regulations 2000. In sentencing the appellant, the Magistrate concluded that, “The cannabis was grown because he (the appellant) suffered pain from an old injury”. It is implicit from the Magistrate’s remarks that he considered that sub‑s (6) applied. The appellant was further charged with providing false information to his landlord relating to his identity and occupation, contrary to s 51 of the Residential Tenancies Act 1995. The Magistrate imposed one penalty being a fine of $400 for the two offences. The appellant was also charged with damaging property. He had rented the premises at Athelstone and had equipped the premises with a sophisticated hydroponic set-up. He had caused damage to the property in the course of installing the system in preparing the property to grow the cannabis. The appellant agreed that the damage caused amounted to $3500. Pursuant to s 85(3) of the Criminal Law Consolidation Act 1935, the maximum penalty for the offence of damaging property, where the damage exceeds $2500 but does not exceed $30,000, is imprisonment for three years. On that count, the Magistrate sentenced the appellant to two months’ imprisonment, which the Magistrate suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for a period of eighteen months. It was a condition of the bond that the appellant pay compensation in the sum of $3500, before 12 April 2008, for and on behalf of Allianz Australian Insurance Limited. The Magistrate did not make it clear under which provision of the Act he required the appellant to make compensation. The appellant appealed against the sentence of imprisonment. The ground of appeal is that the sentence imposed with respect to damaging property was manifestly excessively.The Magistrate’s decision In sentencing the appellant, the Magistrate said:In order to commit the offence of growing the cannabis, as I said, he [the appellant] set about causing certain damage to the victim’s property. The damage was quite extensive and involved cutting holes in the floor, damaging the house foundations, ceilings, roller shutters, bathroom and kitchen area of the victim’s house. The damage has caused significant distress to the landlord as set out in the Victim Impact Statement. The damage for present purposes is quantified at $3,500. Prosecution seeks an order for restitution of that amount and the defendant has agreed to pay that. The damage was caused in blatant disregard to the landlord’s property.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant appealed against the sentence of imprisonment. The ground of appeal is that the sentence imposed with respect to damaging property was manifestly excessively.The Magistrate’s decision In sentencing the appellant, the Magistrate said:In order to commit the offence of growing the cannabis, as I said, he [the appellant] set about causing certain damage to the victim’s property. The damage was quite extensive and involved cutting holes in the floor, damaging the house foundations, ceilings, roller shutters, bathroom and kitchen area of the victim’s house. The damage has caused significant distress to the landlord as set out in the Victim Impact Statement. The damage for present purposes is quantified at $3,500. Prosecution seeks an order for restitution of that amount and the defendant has agreed to pay that. The damage was caused in blatant disregard to the landlord’s property. Counsel for the appellant submitted that the Magistrate was in error in particularising the extent of damage caused by the appellant which included damaging the house foundations and roller shutters. The appellant relied upon an affidavit of Jon Lister, the solicitor for the appellant, who deposed that prior to his client pleading guilty he had discussions with the police prosecutor. It was agreed that the question of the damages caused by the appellant would need to be adjourned for further negotiations. Further discussions took place between the solicitor and another police prosecutor who had conduct of the matter. It was agreed that it was necessary to conduct a disputed facts hearing as to the amount of damage that had been caused by the appellant. The owners asserted damage had been done to the floors, window frames, doors, air-conditioning and many other areas. Damage had been caused to the foundations of the house and there was extensive water damage. When the matter was again before the Magistrate, there were further discussions between Mr Lister and the police prosecutor. An agreement was reached that the quantum of damage was $3500. The appellant agreed to make compensation in that amount to the owner’s insurers. Mr Lister submitted to the Magistrate that the damage caused to the property was nowhere near as severe as the property owners had asserted in their victim impact statement. Mr Lister submitted that the damage caused by the appellant was limited to three small holes which had been cut in the floorboards under the floor of the cupboards in three of the rooms of the house. A hole had been cut in the floor to remove a small section of the floorboards to assist ventilation of the rooms. The appellant agreed that mildew had collected on the ceilings and that the ceilings needed to be repaired and repainted in three bedrooms. An electric oven had been moved from the installation point. Air-conditioning duct covers in each ceiling had been removed The appellant denied that he had caused damage to the foundations or to the fence or to the roller shutters or to the back door. That submission was not contested by the prosecution.

Ratio Decidendi

Legal Principle Established

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