Legal Research
Cases
Nollen v Police

Nollen v Police

Case [2001] SASC 13 2 February 2001

No judgment structure available for this case.

Type to search within this case.

NOLLEN v POLICE
[2001] SASC 13
MAGISTRATES APPEAL
(Criminal)
GRAY J  Introduction
1      On 22 May 2000, the learned magistrate, Mr Harris SM, was satisfied beyond reasonable doubt that the appellant, Kerry Ann Nollen, ("Ms Nollen") breached a bond entered into on 6 August 1997. The conditions of the bond were that she be of good behaviour and undertake 180 hours of community service.
2      Mr Harris SM found that there were no proper grounds to excuse Ms Nollen's breach. He ordered that a suspended sentence imposed by the Mount Barker Magistrates Court on 5 August 1997 be revoked and that the sentence of two years imprisonment be carried into effect. The case was then adjourned to fix a non parole period. Bail pending appeal was granted.
3      This case has a complicated background. Ms Nollen has a long history of dishonesty offences. Her offending has been primarily driven by drug addiction. The courts have sought to assist her rehabilitation by the repeated use of suspended sentences and bonds with appropriate conditions. Ms Nollen's drug addiction has led to her breaching those bonds on occasions. This case raises issues concerning the enforceability of one of those bonds. To fully understand the issues arising it is necessary to trace the history of the matter in considerable detail.
Appeal
4      An appeal was lodged on 31 July 2000. The grounds of that appeal are as follows:
"The Learned Special Magistrate erred in finding that:
i....... The sentence of two years, suspended on the condition that the Appellant enter into a bond a condition of which was that the Appellant perform 180 hours community service imposed on the Appellant on 5 August 1997 for unlawful possession[1] was not a nullity.
ii...... Despite the failure to indicate a period for the extension of the non parole period in respect of each sentence on 5 August 1997 there was effective compliance with s32(1)(b) of The Criminal Law (Sentencing) Act and therefore the sentences imposed on 5 August 1997 were not defective.
iii.The Bonds which formed exhibits P3 and P5 were not invalid and unenforceable by reason of them having been entered into and taken before a Justice of the Peace.
iv...... The Applications were not invalid because they were sworn before a Justice of the Peace.
v.The finding that the Bond comprising Exhibit P2[2] was a nullity and/or the failure by the police to make application to enforce two other Bonds entered into on 5 August 1997 meant that a non parole period could not be fixed in relation to any of the sentences sought to be enforced."
[1]      This is later defined as the second unlawful possession offence
[2]      This is later defined as the second unlawful possession bond.

Amended Grounds of Appeal
5 During the course of submissions, Ms Nollen sought leave to rely on the following additional grounds of appeal:
6 "vi (1) One of the sentences imposed by the learned Special Magistrate sitting at Mount Barker on 5 August 1997 was…

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 Nollen v Police

Details

AGLC: Nollen v Police [2001] SASC 13
Case: [2001] SASC 13
Decision Date: 2 February 2001

CaseChat Overview and Summary

The appellant, Kerry Ann Nollen, was convicted by a magistrate of breaching a bond entered into on 6 August 1997, which was a condition of a suspended sentence of imprisonment. The appeal is against the decision of Mr Harris SM, who revoked the suspended sentence and ordered the appellant to serve the sentence of imprisonment. The appellant submitted that the magistrate erred in his decision on the basis that the sentence was a nullity, the non parole period was not specified, the bonds were invalid because they were taken before a justice of the peace, and the magistrate failed to extend the non parole period. The court found that the magistrate's misunderstanding of his jurisdiction permeated the entire sentencing process and that each bond was unenforceable as a result. The court set aside the sentences and ordered that the appellant be re-sentenced. The court imposed a sentence of 18 months imprisonment for each offence, to be served concurrently, and suspended the sentences on condition that the appellant enter into a bond to be of good behaviour for a period of 2 years. The court fixed a non parole period of 12 months.

The court found that the magistrate's misunderstanding of his jurisdiction permeated the entire sentencing process and that each bond was unenforceable as a result. The court set aside the sentences and ordered that the appellant be re-sentenced. The court imposed a sentence of 18 months imprisonment for each offence, to be served concurrently, and suspended the sentences on condition that the appellant enter into a bond to be of good behaviour for a period of 2 years. The court fixed a non parole period of 12 months.

Orders