Morley v Police - [2005] SASC 233

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MORLEY v POLICE
Judgment of The Honourable Justice Duggan
30 June 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - POWER TO BRING APPEAL
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence - bond and pecuniary penalty imposed by magistrate on plea of guilty for offence of theft contrary to Criminal Law Consolidation Act 1935 s 134 - issue as to existence of right of appeal - appeal against terms of bond is competent - appeal against failure of court to abide by Criminal Law (Sentencing) Act 1988 s 13 is competent - not appropriate to interfere with decision of magistrate in relation to terms of the bond - whether magistrate prevented by s 13 from making an order requiring appellant to pay any pecuniary sum - submissions made on appellant's financial situation not sufficient to require magistrate to refrain from ordering the appellant to pay the pecuniary sums - appeal dismissed.
Criminal Law Consolidation Act 1935 s 134; Magistrates Court Act 1991 s 3, s 42(1); Criminal Law (Sentencing) Act 1988 s 13, referred to.
The Queen v Szpajchler (1982) 31 SASR 236, applied.
Lyberopoulos v Svilans, Kerno & District Court of SA (unreported, 2 August 2001), distinguished.

MORLEY v POLICE
[2005] SASC 233
Magistrates Appeal

DUGGAN J. The appellant has appealed against the sentence imposed on him in the Magistrates Court for the offence of theft contrary to s 134 of The Criminal Law Consolidation Act 1935. Under that section the former offence of receiving can be charged under the extended concept of theft. In effect it was alleged that the appellant received a shirt and a pair of pants of the value of $30.00 which had been stolen by another person.
According to the facts put to the court by the police prosector, the appellant approached the service desk at the Kmart store in Port Pirie with a pair of ladies pants requesting that he be permitted to return them in exchange for money. He produced a receipt which was not a receipt for the item. Police spoke to him a short time later and recovered the pants and a ladies shirt which were in his possession. When questioned the appellant said that a friend had stolen the items from Kmart and given them to the appellant who knew they were stolen.
The appellant pleaded guilty to the offence. The magistrate ordered that no conviction be recorded and the appellant entered into a bond in the sum of $300 to be of good behaviour for 18 months. It was a condition of the bond that the appellant perform 200 hours of community service. The appellant was also required to pay certain costs and 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 Morley v Police

Details

AGLC: Morley v Police [2005] SASC 233
Case: [2005] SASC 233
Decision Date: 30 June 2005

CaseChat Overview and Summary

The appeal in Morley v Police was brought by the convicted person against the sentence imposed by the magistrate following a plea of guilty for theft under the Criminal Law Consolidation Act 1935. The appellant contested the bond and pecuniary penalty imposed, asserting that the magistrate did not adhere to the requirements of the Criminal Law (Sentencing) Act 1988. The central legal issues were the existence of the right to appeal the sentence, the terms of the bond, and whether the magistrate was prevented from ordering the appellant to pay any pecuniary sum under section 13 of the 1988 Act.

The court examined whether the appeal against the bond and pecuniary penalty was competent, finding that such an appeal was indeed permissible. It also considered whether the magistrate's decision should be interfered with regarding the bond's terms, concluding that it was not appropriate to do so. The court addressed the appellant's submissions about their financial situation, determining that they were not sufficient grounds for the magistrate to refrain from ordering the payment of pecuniary sums. The submissions did not establish that the magistrate was prevented from imposing the pecuniary penalty under section 13 of the 1988 Act.

Consequently, the appeal was dismissed. The court found no basis to interfere with the magistrate's decision, maintaining that the appellant's submissions were insufficient to prevent the imposition of the pecuniary penalty. The court upheld the sentence and bond as imposed by the magistrate, affirming the magistrate's discretion in sentencing matters.

Orders