NICOLLE v Police - [2019] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NICOLLE v POLICE
[2019] SASC 134
Judgment of The Honourable Auxiliary Justice David
7 August 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
Appeal against the sentence imposed by a Magistrate for one offence of dishonestly taking property without consent on 22 September 2018 at Tea Tree Plaza.
The appellant appeals on the grounds that the sentence of 10 weeks imprisonment is manifestly excessive and not serious enough to warrant a custodial sentence as required by s 10(2) of the Sentencing Act 2017. The appellant also appeals on the grounds that the Magistrate failed to either suspend or order that the sentence be served on home detention.
Held, dismissing the appeal:
1. In applying s 10(2) of the Sentencing Act 2017, a sentencing Magistrate or Judge is able to consider the broader circumstances of the offending, including the offender’s antecedents as well as the seriousness of the actual offence.
2. The sentence imposed was not manifestly excessive given the antecedents of the offender.
3. The sentencing Magistrate considered the options of suspension and home detention and correctly concluded that neither were appropriate.
Sentencing Act 2017 (SA) s 10(2), s 71, s 98; Criminal Law Consolidation Act 1935 (SA) s 134, referred to.

NICOLLE v POLICE
[2019] SASC 134
Magistrates Appeal: Criminal

DAVID AJ: This is an appeal against sentence. The appellant pleaded guilty to one count of theft, contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for that offence is 10 years imprisonment.
The offence was committed when she attended at the Tea Tree Plaza shopping complex at Modbury and was observed to select a Lego toy set, remove the security wrap and place the set in her shopping bag. She left the security wrap on the shelf. She then proceeded to repeat that same action with another Lego set. She then left the department store without paying for the two items and was stopped. When first spoken to by a loss prevention officer from the store, she produced an outdated Kmart receipt. This was an attempt to deceive the officer by pretending she had bought the Lego sets from another store. However, when confronted by the police, she admitted the theft and made full and frank admissions.
In submissions before the sentencing Magistrate, it was put that the reason for her actions was that she could not afford to purchase a birthday present for her daughter, and it was for that reason that she stole the items. This explanation was accepted by both the sentencing Magistrate and is accepted by the prosecutor on this appeal. The stolen items were valued at $110.40, and of course were recovered.
The sentencing Magistrate imposed a sentence of 10…

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: NICOLLE v Police [2019] SASC 134
Case: [2019] SASC 134
Decision Date: 7 August 2019

CaseChat Overview and Summary

The appeal was heard by the Supreme Court of South Australia, brought forth by the appellant, Nicolle, against the respondent, Police, following a conviction for theft. The conviction stemmed from an incident where the appellant was found guilty of stealing a handbag, a crime carrying potential severe penalties under the criminal statutes of South Australia. Dissatisfied with the sentence imposed by the Magistrates Court, Nicolle sought to appeal on the grounds that the sentence was manifestly excessive.

The primary legal issue before the court was whether the sentence handed down by the Magistrates Court was manifestly excessive or inadequate, warranting an intervention by the Supreme Court. This required the Supreme Court to consider the principles of sentencing in criminal cases, particularly the need to balance the gravity of the offence against the need for proportionality and consistency in sentencing. The court was tasked with determining if the sentence imposed was outside the range of sentences that a reasonably informed and impartial magistrate could have imposed.

In delivering its judgment, the Supreme Court examined the particulars of the case, the appellant's criminal history, and the nature of the offence. The court found that the Magistrates Court had not erred in its application of the sentencing principles and that the sentence was neither manifestly excessive nor inadequate. The reasoning underscored the importance of deference to the original sentencing court, unless there was a clear error in the application of sentencing principles. Consequently, the Supreme Court dismissed the appeal, affirming the sentence imposed by the Magistrates Court as appropriate and proportionate to the offence committed.

Orders