Monterola v Police - [2009] SASC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MONTEROLA v POLICE
[2009] SASC 42
Judgment of The Honourable Justice Nyland
26 February 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - FACTUAL BASIS FOR SENTENCE - SENTENCING GUIDELINES
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - CUMULATIVE OR CONCURRENT SENTENCES
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - CONVICTION ON PLEA OF GUILTY
Appeal against sentence – whether non-parole period manifestly excessive – whether Magistrate erred in not exercising discretion to suspend term of imprisonment – sentence imposed with respect to a number of offences of dishonesty committed over about a 10-year period – appellant completed Drug Court Program over about 12 months - consideration of relationship of non-parole period to head sentence.
Held: Magistrate gave insufficient weight to progress made by appellant towards rehabilitation – no good reason to suspend but appeal allowed to reduce non-parole period fixed by Magistrate.
Criminal Law Sentencing Act SA (1988) s 32(5), referred to.
Police v Maraldo [2005] SASC 479; R v Khim (2002) SASC 343; R v Creed (1985) 37 SASR 566; R v Power [2003] SASC 288, discussed.
Salvador Salgado-Silva (2001) NSWCCA 423; R v Manolakis [2008] SASC 129; R v Miller (2000) 76 SASR 151, considered.

MONTEROLA v POLICE
[2009] SASC 42

NYLAND J: This appeal is against a sentence imposed in the Adelaide Magistrates Court on 24 September 2008. On that occasion, following pleas of guilty, the appellant was sentenced to be imprisoned for three years and seven months with a non-parole period of two years. The sentence and the non-parole period were directed to commence from the same date, ie 24 September 2008. The appellant does not make any complaint with respect to the head sentence imposed by the learned Magistrate. The issue which arises for determination on this appeal is whether the non-parole period was manifestly excessive in all the circumstances and whether the learned Magistrate erred in not exercising her discretion to suspend the term of imprisonment.
The sentence of imprisonment was imposed with respect to a number of offences of dishonesty committed over about a 10-year period, details of which are set out in the affidavit of Yasmin Jade Alicia McMahon, sworn on 1 December 2008 (the McMahon affidavit). The appellant also pleaded guilty to a number of driving offences, as well as breaching bail, but those matters were dealt with by fines and are not relevant to this appeal. The appellant also has an extensive prior history for offences of dishonesty and driving offences commencing when he was a juvenile[1].
[1] See appellant’s antecedent report which is Exhibit YJAM 13 to the McMahon affidavit.
On…

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

Case: [2009] SASC 42
Decision Date: 26 February 2009

CaseChat Overview and Summary

In the case of Monterola v Police, the appellant was sentenced by a Magistrate in South Australia after pleading guilty to a series of offences of dishonesty committed over approximately a decade. The appeal focused on the non-parole period set by the Magistrate, which the appellant deemed excessively long, and the Magistrate's decision not to exercise the discretion to suspend the imprisonment term. The appellant had successfully completed a Drug Court Program over a period of about 12 months.

The legal issues before the court included whether the non-parole period was manifestly excessive and whether the Magistrate had erred in not suspending the term of imprisonment. The court had to consider the appropriate factors to be taken into account when determining the non-parole period, particularly the balance between rehabilitation prospects and the need for deterrence and punishment. The court also examined the relationship between the non-parole period and the head sentence, along with the circumstances of the offender and the nature of the offending.

The court found that the Magistrate had given insufficient weight to the appellant's progress towards rehabilitation, as evidenced by the completion of the Drug Court Program. While there was no good reason to suspend the sentence, the non-parole period set by the Magistrate was considered manifestly excessive. The court concluded that the non-parole period should reflect the specific circumstances of each case, balancing various factors such as the seriousness of the offending, the offender's personal circumstances, and the prospects for rehabilitation. In this instance, the court allowed the appeal to reduce the non-parole period fixed by the Magistrate.

The final orders of the court involved reducing the non-parole period set by the Magistrate, thereby addressing the appellant's concerns regarding the excessive length of the original sentence. The court's decision underscored the importance of a balanced and contextual approach to sentencing, ensuring that the non-parole period appropriately reflected the unique circumstances of the case and the offender.

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

Ms Smith however submitted that there was no established formula to be followed in fixing a non-parole period. While acknowledging that the “rule of thumb” for a non-parole period was usually between half and two thirds of the total head sentence, the authorities required a sentencing judge to consider the circumstances of each individual case. When setting a non-parole period the same factors that were relevant to the setting of a head sentence, but agreed it was not the sole consideration. She acknowledged that rehabilitation must be taken into account as an important factor in determining the sentence, but agreed it was not the sole consideration. Other factors which the court was required to hear included prior offending history, the personal circumstances of a defendant, the seriousness of the offending and principles of personal and general deterrence. Conclusion Section 32 of the Criminal Law Sentencing Act SA (1988) refers to the duty of a court to fix a non-parole period when sentencing a person to a term of imprisonment. Subject to some qualifications, which appear in s 32(5), there is no established formula to be followed by a judicial officer in the setting of a non-parole period. In particular, there is no formula regarding the percentage of the non-parole period in relation to the head sentence. The length of the non-parole period will depend upon the circumstances of the case and the circumstances of the defendant. It does however represent the minimum term which the defendant must spend in prison to satisfy the punitive deterrent and preventive purposes of punishment. This has been the subject of discussion in a number of cases. In Salvador Salgado-Silva[5] the NSW Court of Appeal commented at [35]:… it is inappropriate for a sentencing judge to adopt a mechanistic approach to the assessment of an appropriate sentence when it comes to the application of discounts and allowances for the various subjective matters which his Honour was required to take into account. With so many sentencing principles jostling against each other for primacy, a balancing exercise must necessarily be undertaken to reach an appropriate sentencing regime. [5] (2001) NSWCCA 423. The court went on to say, however, at [39]:It has been accepted by this Court in a number of cases that the appropriate practice is to fix a non-parole period of between 60 to 66 per cent, except for the worst class of case. In R v Khim[6]Perry J when discussing the fixing of a non-parole period said at [23] that it would be wrong to approach this aspect of the matter on the footing that there was any sort of norm as to the proportion of the head sentence represented by the non-parole period. He went on to refer to the decision of the Court of Criminal Appeal in R v Creed[7], wherein King CJ (with whom Cox and Olsson JJ concurred) said:Counsel for the respondent mentioned, in the course of his submissions, what I gathered from him was regarded as something of a norm, namely that the non-parole period should represent two-thirds, in an ordinary case, of the head sentence. The members of this bench know of no such practice and speaking for myself, and I think the other two members of this Court, I would wish to say that the Court does not regard a non-parole period of two-thirds, nor indeed any other proportion, of the head sentence as being the norm. Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case. In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part. Nothing in the nature of a norm can be acceptable.[6] (2002) SASC 343.[7] (1985) 37 SASR 566.

Ratio Decidendi

Legal Principle Established

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