DOYLE CJ. (ex tempore) This is an appeal against a sentence imposed by the Magistrates Court. There are two grounds. The first is that the sentence is manifestly excessive in light of the material before the magistrate. The second is that an event occurring after sentence was passed should be taken into account and, in light of that, the sentence is manifestly excessive.
The appellant pleaded guilty in the Magistrates Court to six counts of breaking and entering a dwelling and stealing property from the dwelling. The offences were in April, August, September and October 1998. The value of the property taken ranged from $305 in one case, to about $2,500 in another case. I calculate the total value at about $10,000. Some of the property was apparently recovered but how much is unclear. Some of the property was pawned; that resulted in two counts of obtaining property by false pretences. The appellant pleaded guilty to these counts.
There was one count of being in possession of property suspected of being stolen, the appellant pleaded guilty to that. There was also a count alleging a breach of bail conditions; the appellant pleaded guilty to that.
The appellant was charged on two informations. The first information alleged four counts of breaking and entering and two counts of obtaining property by false pretences. On that information the magistrate imposed a single sentence of 2 years 6 months’ imprisonment. The second information alleged two counts of breaking and entering and also the breach of bail. The magistrate imposed a single sentence of 1 year 6 months’ imprisonment, cumulative on the first sentence.
In relation to the combined head sentence of 4 years, the magistrate fixed a non-parole period of 2 years 6 months. The head sentence and non-parole period run from 21 October 1998.
The breaking and entering offences are serious offences. The offence is a prevalent offence. It often has significant effects on the home owner and occupier. It is an offence that causes real community concern. The magistrate was right to regard these offences as serious.
The offences of obtaining property by false pretences and possessing property suspected of being stolen do not involve the same effects on victims, but remain serious. They indicate an ongoing disregard of the rights of other members of society.
I turn now to the matters that were put to the magistrate.
First of all the appellant pleaded guilty. The magistrate had a helpful pre-sentence report and a psychiatric report. Mr Neill is 33 years of age. He had an upbringing that can truly be called abnormal, judged by what he has told the report writers. As a child he was treated by a de facto stepfather in a fashion that left him ill equipped to participate in society in a normal manner. He has been heroin dependent since about the age of 16. He has used heroin regularly since then, except when in gaol.
Mr Neill…
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
AGLC
Neill v Police [1999] SASC 270
Case
[1999] SASC 270
Decision Date
CaseChat Overview and Summary
In the case of Neill v Police, the appellant challenged the sentence imposed by the Magistrates Court on appeal to the Supreme Court. The appellant had pleaded guilty to multiple counts of breaking and entering, stealing, obtaining property by false pretences, and breaching bail conditions. The court was required to decide whether the sentence was manifestly excessive and if an event occurring after sentence, the death of the appellant's partner, should be taken into account. The sentencing was influenced by the appellant's background, including a troubled upbringing, heroin dependency, lack of employment skills, and a significant criminal history. The court found that the sentence, while serious, was within the appropriate range and that the magistrate had considered all relevant factors.
The Supreme Court considered whether the fresh evidence of the appellant's partner's death and the impact on the children should lead to a reduction in the sentence. The court found that the impact on the family was a matter before the magistrate, and the fresh evidence revealed an aspect that was not known at the time. However, the court concluded that the head sentence should remain unchanged, but the non-parole period could be reduced to better support the appellant's daughters. The court allowed the appeal, set aside the original sentence, and substituted a new sentence with a reduced non-parole period to reflect the welfare of the appellant's daughters.