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 241Magistrates 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…
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- Neuhuber v Police [2011] SASC 241
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- [2011] SASC 241
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CaseChat Overview and Summary
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.
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Background
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