Nicholls v Police - [2007] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NICHOLLS v POLICE
[2007] SASC 142
Judgment of The Honourable Justice Kelly
27 April 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING
Appeal against sentence - appellant pleaded guilty to multiple offences of dishonesty and offences contrary to the Motor Vehicles Act - in addition appellant pleaded guilty to 19 breaches of bail for which one one sentence of ten months imprisonment imposed pursuant to s18A Criminal Law (Sentencing) Act - total head sentence of 3 years, 11 months and 16 days - whether sentencing remarks were adequate in relation to explaining credit given for pleas of guilty - whether appellant was wrongly deprived of an opportunity to re-enter the Mental Health Diversion program - whether Magistrate erred in declining to give any credit for the period spent on home detention bail - whether Magistrate erred in failing to calculate separate and distinct sentences for each of the 19 breaches of bail before determining a suitable single sentence - whether sentence excessive - whether Magistrate erred in failing to take into account time spent in immigration detention by the appellant - HELD - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) ss 10(1), 18A, 19C; Motor Vehicles Act 1959 (SA) ss 9, 74, 91, 102; Bail Act 1985 (SA) s 17(1); Correctional Services Act 1982 (SA) s 75, referred to.
R v Becker (2005) SASR 498; R v Place (2002) 81 SASR 359; R v Sutherland Unreported judgment S3705 16 November 1992; R v Sladic [2005] SASC 210; Strugnell v Police [2007] SASC 33; R v Malesevic (1999) 2004 LSJS 32; Darter v Diden [2006] SASC 152, applied.
H, T v Police (2005) SASC 143; Zainudin [2005] 190 FLR 149; Yusup [2005] NTCAA 19, distinguished.

NICHOLLS v POLICE
[2007] SASC 142
Magistrates Appeal

KELLY J The Appellant Martin Terrence Nicholls appeals against a sentence imposed in the Magistrates Court on 1 November 2006. The Sentencing Magistrate imposed a head sentence of three years eleven months and sixteen days with a non-parole period of eighteen months effective from 1 November 2006.
In order to understand how that sentence was arrived at, it is necessary to understand exactly what matters were before the Magistrate.
Summary of Charges and Penalties Imposed
For convenience I set out a schedule of the charges and penalties imposed below.
Magistrates Court File No 06-4045

Count Date Charge
Maximum Penalty
Penalty Imposed

9 16/2/ & 19/4/2000 Receiving 8 years imprisonment 6 months cumulative upon the unexpired parole of 1 year 5 months and 24 days.

2 19/5/ & 14/12/2000 Receiving 8 years
imprisonment 6 months cumulative upon the sentence imposed in respect of count 9.

5 8/9 & 14/12/2000 Receiving 8 years
imprisonment 6 months cumulative upon the sentence imposed in respect of count 2.

6 1/9 & 6/10/2000 False Pretences 4 years
imprisonment 4 months cumulative upon the sentence imposed in respect of count 5.

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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: [2007] SASC 142
Decision Date: 27 April 2007

CaseChat Overview and Summary

In the case of Nicholls v Police, the appellant challenged the sentence imposed by the Magistrate, having pleaded guilty to multiple offences of dishonesty and breaches of the Motor Vehicles Act, as well as 19 breaches of bail conditions. The central issues revolved around the adequacy of the sentencing remarks, the denial of an opportunity to re-enter the Mental Health Diversion program, the lack of credit for time spent on home detention bail, the calculation of sentences for multiple breaches of bail, the overall excessiveness of the sentence, and the failure to consider time spent in immigration detention. The appeal was ultimately dismissed by the court.

The legal issues the court had to address included whether the Magistrate's sentencing remarks were adequate in explaining the credit given for the appellant's pleas of guilty, whether the appellant was wrongly deprived of an opportunity to re-enter the Mental Health Diversion program, whether the Magistrate erred in not giving credit for the period spent on home detention bail, whether the Magistrate erred in failing to calculate separate and distinct sentences for each of the 19 breaches of bail, whether the overall sentence was excessive, and whether the Magistrate erred in failing to take into account the time spent in immigration detention.

The court found that the Magistrate's sentencing remarks were sufficient to allow the court to understand his reasoning, and that the Magistrate had addressed all relevant issues, including the appellant's prospects of rehabilitation. The court concluded that the Magistrate had correctly declined to take into account the time spent in immigration detention as it was unrelated to the offences before the court. The court also found that the head sentence and non-parole period were appropriate, and that the appeal should be dismissed.

No specific orders were made beyond the dismissal of the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KELLY J

In this case the Appellant’s detention at the Baxter Immigration Centre was unrelated to any of the offending before the Magistrate. For these reasons in my view the Magistrate was correct in declining to take it into account that time spent in Immigration detention.Conclusion The Magistrate addressed all of the issues relevant to the Appellant’s prospects of rehabilitation, including his conduct throughout the period between 2000 – 2006. He was given extensive material relating to the Appellant’s psychological and physical condition. The fact that he relied upon some of them and took others into account is obvious from his references to them at numerous points throughout his sentencing remarks. Generally, the Magistrate gave careful and detailed reasons for his approach which were quite sufficient to enable this Court to identify and understand his reasoning. Given the nature and extent of the offending for which the Appellant was to be sentenced and his prior criminal history, considerations of both general and personal deterrence were very important in sentencing the Appellant. In the light of all of the circumstances, I do not consider that the Magistrate’s remarks contain any error of principle. The head sentence was appropriate and in my view the non-parole period was relatively modest. For all of these reasons the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

I would therefore dismiss this ground of appeal.The Detention in the Immigration Centre at Baxter The Appellant complained that the Magistrate erred by failing to take into account the time spent in Baxter Immigration Centre by the appellant. The Magistrate concluded that the Appellant’s detention in Baxter was at the behest of the Federal authorities apparently in relation to deportation proceedings which he concluded had nothing to do with the matters before him. The Appellant’s counsel submitted that the Appellant’s detention was in fact directly related to the matters before the court because the investigating officer in relation to the matters before the had been involved in reporting the Appellant to the Federal authorities for potential breaches of the Migration Act 1958 (Cth). At the hearing of this appeal I was informed that in fact the Appellant was lawfully detained on a warrant issued under the provisions of the Migration Act in connection with a suggestion that he was not a fit and proper person to remain in Australia as a result of his offending history. For some reason, which is not clear, the investigating officer in relation to the Magistrate Court matters was present with the Federal authorities when they arrested the Appellant for the alleged breaches of the Migration Act. In my view, even if that were true, none of these factual allegations could give rise to any suggestion that the Appellant’s detention in the Baxter Immigration Centre was somehow referable to or related to the offences before the court. The Appellant relied on a number of interstate decisions which he contended were authority for the principle that time spent in immigration detention was a matter which could have and should have been taken into account by the Magistrate. In my view those interstate decisions (Zainudin[6], Yusup[7]) are distinguishable from this case.[6] Zainudin [2005] 190 FLR 149[7] Yusup [2005] NTCCA 19 Where there is a close connection between the detention and the offence before the court the fact of immigration detention may be taken into account by a sentencing judge or magistrate: Darter v Diden[8]. In each of the cases relied on by the Appellant, the court was dealing with offences committed contrary to Federal Statutes and the immigration detention concerned was either solely referable to that offending or very closely connected with that offending.[8] Darter v Diden [2006] SASC 152 In this case the Appellant’s detention at the Baxter Immigration Centre was unrelated to any of the offending before the Magistrate. For these reasons in my view the Magistrate was correct in declining to take it into account that time spent in Immigration detention.Conclusion The Magistrate addressed all of the issues relevant to the Appellant’s prospects of rehabilitation, including his conduct throughout the period between 2000 – 2006. He was given extensive material relating to the Appellant’s psychological and physical condition. The fact that he relied upon some of them and took others into account is obvious from his references to them at numerous points throughout his sentencing remarks.

Count	Date	Charge		Maximum Penalty	Penalty Imposed
9	16/2/ & 19/4/2000	Receiving	8 years imprisonment		6 months cumulative upon the unexpired parole of 1 year 5 months and 24 days.
2	19/5/ & 14/12/2000	Receiving	8 years imprisonment		6 months cumulative upon the sentence imposed in respect of count 9.
5	8/9 & 14/12/2000	Receiving	8 years imprisonment		6 months cumulative upon the sentence imposed in respect of count 2.
6	1/9 & 6/10/2000	False Pretences	4 years imprisonment		4 months cumulative upon the sentence imposed in respect of count 5.
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