Niehus v Police - [2012] SASC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NIEHUS v POLICE
[2012] SASC 56
Judgment of The Honourable Justice Gray
10 April 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence - defendant convicted following trial in the Magistrates Court of offence of stalking - the conduct breached a six month suspended sentence bond imposed for offence of possession of child pornography - conduct also breached a good behaviour bond imposed for breaches of bail - where the Magistrate sentenced the defendant to cumulative terms of imprisonment in respect of the offending: the suspended sentence of six months imprisonment was revoked, a sentence of two weeks imprisonment was imposed for the breach of the good behaviour bond, and a sentence of eight months imprisonment was imposed for the stalking offending - in respect of the total term of 14 months and two weeks, a non-parole period of 9 months was imposed - where the Magistrate ordered that the defendant pay the prosecution costs fixed at $1000.00 - whether the overall penalty was manifestly excessive, and in particular, whether the Magistrate failed to give proper consideration to the sentences being ordered to be concurrent or partly concurrent.
Held: appeal allowed for the limited purpose of setting aside the order for costs - otherwise, orders imposed confirmed - no error of sentencing principle demonstrated - the defendant has demonstrated a complete disregard of orders of the Court - however, in circumstances where the defendant faced an immediate term of imprisonment of nine months, the making of the order for costs was inappropriate.
Intervention Orders (Prevention of Abuse) Act 2009 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 13, s 19A and s 58(4); Criminal Law Consolidation Act 1935 (SA) s 19AA(2)(b), referred to.
R v Copeland (No 2) (2010) 108 SASR 398; Nesbitt v Harries (Unreported, Supreme Court of South Australia, Mulligan J, 15 March 1991, 2770); R v Jones [2005] SASC 183, [31] (Gray, Sulan and Layton JJ), considered.

NIEHUS v POLICE
[2012] SASC 56
Magistrates Appeal
GRAY J.

This is an appeal against sentence.
The defendant and appellant, Christopher Niehus, was charged with the offence of stalking.[1] It was alleged that the stalking took place between 28 and 31 December 2009. It was further alleged that the offence was aggravated in that the offence was committed in connection with the victim’s conduct in a legal proceeding. On 25 November 2011, following a trial before a Magistrate the defendant was convicted. At that time bail was revoked and the defendant was remanded in custody. On 22 December 2011, the defendant was sentenced in respect of the stalking offence to a term of imprisonment of eight months.
[1] Contrary to section 19AA(2)(b) of the Criminal Law Consolidation Act 1935 (SA).
The defendant’s conduct in committing the offence of stalking breached a suspended sentence bond. On 20 May 2008, the defendant had been sentenced to…

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: Niehus v Police [2012] SASC 56
Case: [2012] SASC 56
Decision Date: 10 April 2012

CaseChat Overview and Summary

The case of Niehus v Police involved an appeal by the defendant against a decision of the Magistrates Court. The defendant contested an order for costs made against them by the Magistrate, arguing it was inappropriate given the defendant faced a term of immediate imprisonment of nine months. The defendant contended that the order for costs was not suitable in light of their financial incapacity, which the Magistrate had acknowledged.

The legal issues before the court were whether the order for costs was appropriate in the circumstances of the defendant’s imprisonment and financial circumstances, and whether the court should apply section 13(1)(a) of the Sentencing Act, which prohibits requiring a defendant to pay a pecuniary sum if the defendant lacks the means to do so.

The court considered the relevant statutory provisions and case law, noting that section 13(1)(a) of the Sentencing Act prevents the imposition of pecuniary penalties if the defendant is unable to pay, particularly when other severe penalties, such as imprisonment, are imposed. The court referenced the decision in Jones, where the Supreme Court of South Australia held it inappropriate to impose monetary penalties when imprisonment was ordered. The court concluded that the order for costs was inappropriate in the present case, given the defendant's financial situation and the severe penalty of imprisonment already imposed.

In conclusion, the appeal was allowed to set aside the order for costs, but the orders for imprisonment, including the non-parole period, were confirmed. The court found that imposing costs on the defendant, who faced an immediate term of imprisonment and was deemed unable to pay, contravened the provisions of the Sentencing Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

During the course of the appeal I raised with counsel for the police the appropriateness of the order for costs. In the circumstance where this defendant faced a term of immediate imprisonment of nine months, I consider the making of an order for costs to be inappropriate. Counsel did not oppose the setting aside of that order. Section 13(1)(a) of the Sentencing Act provides that a court must not require a defendant to pay a pecuniary sum if the court is satisfied that the means of the defendant are such that the defendant would be unable to comply with the order. “Pecuniary sum” is defined in section 3 of the Act to include costs. The court is to take into account whether the other penalties being imposed on the defendant are likely to deprive him or her of the means to pay a fine.[5] Section 13 has been held to apply where orders for immediate imprisonment are made. This Court in Jones, in a judgment of the Court, held that it was inappropriate in that case to impose monetary penalties for any of the offending, as orders for imprisonment were imposed with immediate effect.[6] In the within proceedings, I consider it to have been inappropriate to order the payment of prosecution costs, despite concessions by counsel below, in circumstances where the defendant was facing an immediate term of nine months imprisonment and where the Magistrate himself accepted that the defendant “had no real capacity to pay”. I consider this an appropriate case for the application of section 13 of the Sentencing Act. [5] Nesbitt v Harries (Unreported, Supreme Court of South Australia, Mulligan J, 15 March 1991, 2770). [6] R v Jones [2005] SASC 183, [31] (Gray, Sulan and Layton JJ). Conclusion This appeal is allowed for the limited purpose of setting aside the order for costs made by the Magistrate. The orders of imprisonment including the non-parole period are confirmed.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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