Neuhuber v Police - [2011] SASC 241

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NEUHUBER v POLICE
[2011] SASC 241
Judgment of The Honourable Justice Gray
22 December 2011
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
CRIMINAL LAW - PROCEDURE - PLEAS - PLEAS IN BAR - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER SUFFICIENT BAR - PROPERTY OFFENCES
Appeal against sentence imposed by Magistrate - application for extension of time within which to appeal against conviction - where defendant sentenced in the Magistrates Court for a number of offences, including unlawful interference with a motor vehicle and theft - where the defendant unsuccessfully applied for release on parole following the completion of the non-parole period imposed by the Magistrate - complained on appeal that the defendant was entitled to be released on parole, and that as a consequence, the sentence imposed was manifestly excessive - further complained that the defendant had been wrongly convicted and sentenced for two offences that arose out of precisely the same facts, and accordingly was exposed to double jeopardy and double punishment.
Held: application for extension of time within which to appeal against conviction, refused - there is no substance to the proposed appeal against conviction - the gist and gravamen of the unlawful interference had no substantial identity to that of the theft offence - it has not been established that any matter relevant to sentencing has been overlooked by the Magistrate - appeal against sentence dismissed.
Bail Act 1985 (SA) s 22; Criminal Law Consolidation Act 1935 (SA) s 86(a), s 134 and s 170; Summary Offences Act 1953 (SA) s 41(1) and s 74A(3)(b)(i); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Correctional Services Act 1982 (SA) s 66, referred to.
Farrelly v Howells (1976) 12 SASR 520; Moreshead v Police [1999] SASC 162; Deas v Police [1998] SASC 7236; R v O’Loughlin; ex parte Ralphs (1971) 1 SASR 219; Wemyss v Hopkins (1875) LR 10 QB 378; Pearce v The Queen (1998) 194 CLR 610; R v Waugh (2005) 93 SASR 274; R v Alashkar; R v Tayar (2007) 17 VR 65, considered.

NEUHUBER v POLICE
[2011] SASC 241
Magistrates Appeal
GRAY J:

This is an appeal against sentence. The defendant and appellant, Natasha Neuhuber, also seeks leave to appeal against conviction. An appeal against conviction has yet to be lodged.
The appeals require, inter alia, consideration of whether the defendant was exposed to double jeopardy and whether the defendant was sentenced on the basis of a misunderstanding with respect to the obligation on the part of the Parole Board to release the defendant on parole at the conclusion of her non-parole period.
Background
The defendant pleaded guilty in the Adelaide Magistrates Court to six offences. The first, of being in possession of a mobile telephone reasonably suspected of having been stolen, was committed on 28 February 2011. The remaining five offences were…

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 Neuhuber v Police

Details

AGLC: Neuhuber v Police [2011] SASC 241
Case: [2011] SASC 241
Decision Date: 22 December 2011

CaseChat Overview and Summary

In the matter of Neuhuber v Police, the defendant appealed against the sentence imposed by the Adelaide Magistrates Court. The defendant had been convicted of six offences, including unlawful interference with a motor vehicle and theft. The defendant applied for an extension of time within which to appeal against the conviction, arguing that the sentence imposed was manifestly excessive and that they had been wrongly convicted and sentenced for two offences that arose out of precisely the same facts, resulting in double jeopardy and double punishment. The appeal against the sentence imposed by the Magistrate was dismissed.

The court had to decide whether the defendant was exposed to double jeopardy and whether the defendant was sentenced based on a misunderstanding with respect to the obligation on the part of the Parole Board to release the defendant on parole at the conclusion of her non-parole period. The court found that there was no substance to the proposed appeal against conviction, as the unlawful interference had no substantial identity to that of the theft offence. It was also determined that any matter relevant to sentencing had not been overlooked by the Magistrate. Therefore, the appeal against the sentence was dismissed.

The court reasoned that there was no relevant matter to sentencing that was overlooked by the Magistrate. Given the circumstances of the offending and the defendant's criminal record, the Magistrate imposed a merciful sentence. The defendant's complaints about the Parole Board could be addressed through judicial review proceedings. The court refused an extension of time to appeal against conviction, considering the application to have no merit. The appeal against sentence was dismissed.

The final orders of the court were that the application for an extension of time to appeal against conviction was refused, and the appeal against the sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appeals require, inter alia, consideration of whether the defendant was exposed to double jeopardy and whether the defendant was sentenced on the basis of a misunderstanding with respect to the obligation on the part of the Parole Board to release the defendant on parole at the conclusion of her non-parole period. Background The defendant pleaded guilty in the Adelaide Magistrates Court to six offences. The first, of being in possession of a mobile telephone reasonably suspected of having been stolen, was committed on 28 February 2011. The remaining five offences were those of providing false information in an application for a release on bail knowing that information to be false, contrary to section 22 of the Bail Act 1985 (SA); of interfering with a motor vehicle without first obtaining consent of the owner contrary to section 86(a) of the Criminal Law Consolidation Act 1935 (SA); of theft of money, contrary to section 134 of the Criminal Law Consolidation Act; of being in possession of property reasonably suspected of having been stolen, contrary to section 41(1) of the Summary Offences Act 1953 (SA); and finally, of providing false personal details to a police officer, having been reasonably suspected of committing an offence, contrary to section 74A(3)(b)(i) of the Summary Offences Act. These five offences were committed on 1 March 2011. On 1 April 2011, the Magistrate convicted the defendant of each of the above six offences and proceeded pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose the one penalty of nine months imprisonment for all offending. The Magistrate made a reduction of two months on account of her pleas of guilty and one month on account of time spent in custody. On 4 February 2011, the defendant had been sentenced to imprisonment for two months in respect of two offences that occurred on 10 October 2010. Those offences were aggravated serious criminal trespass in an occupied residence[1] and dishonestly taking property without the owner’s consent.[2] The sentence was suspended on the defendant’s entry into a supervised 12 month good behaviour bond. On 1 April 2011, the Magistrate revoked the suspension of this sentence and accordingly the defendant became liable to serve the term of two months imprisonment. [1] Contrary to section 170 of the Criminal Law Consolidation Act 1935 (SA). [2] Contrary to section 134 of the Criminal Law Consolidation Act 1935 (SA). The convictions recorded on 1 April 2011 rendered the defendant liable to serve the balance of an outstanding period of parole; a period of three months and 25 days. This outstanding period of parole related to a sentence imposed on 1 April 2010. On that occasion, the defendant was sentenced by a Magistrate in respect of 38 offences to a total term of imprisonment of 14 months and 25 days. A non-parole period of six months commencing on 1 April 2010 was fixed. In accordance with the terms of the Correctional Services Act 1982 (SA) and the Sentencing Act, the defendant commenced to serve the unexpired period of parole of three months and 25 days on 1 April 2011. The revoked suspended sentence of two months imprisonment and the further sentence of nine months imprisonment were ordered to be served cumulatively and commencing at the expiration of the unexpired period of parole. As a consequence, the defendant was to serve a total period of imprisonment of 14 months and 25 days. The Magistrate fixed a non-parole period of three months in respect of this total period of imprisonment commencing on 1 April 2011.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I do not consider that the defendant has established that there is a relevant matter to sentencing that was overlooked by the Magistrate. Having regard to the circumstances of the offending and the defendant’s appalling record, the Magistrate on any view imposed a very merciful sentence. There was no complaint about the sentence until the defendant’s concerns about release on Parole arose. To my mind, that is the defendant’s real complaint. Judicial review proceedings have been available to address that complaint. Those proceedings were not issued until 21 November 2011. The defendant’s complaints about the Parole Board can be addressed through those proceedings. If there is any substance to those complaints the Court can consider the appropriate relief.Conclusion Having regard to the foregoing, I refuse an extension of time to appeal against conviction. I consider the application has no merit. I dismiss the appeal against sentence.

Ratio Decidendi

Legal Principle Established

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