NORRIS v Police - [2004] SASC 270

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NORRIS v POLICE
Judgment of The Honourable Justice Nyland
7 September 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appellant charged with numerous offences on seven separate complaints - pleaded guilty - convicted and sentenced in Magistrates Court - whether sentencing discretion miscarried - insufficient weight given to prospects of rehabilitation and possible mitigatory effect of drug addiction - whether sentences should be cumulative - failure to consider totality principle - appeal dismissed.
Criminal Law Consolidation Act 1935, ss 86A, 134, 170; Motor Vehicles Act 1959, ss 9, 91, 102; Summary Offences Act 1953, ss 6, 4(1); Criminal Law (Sentencing) Act 1988, ss 18A, 31, 57; Bail Act 1985, s 17(1); Controlled Substances Act 1984, s 18(3), referred to.
R v Henry (1999) 46 NSWLR 346, applied.
R v Proom (2003) 85 SASR 120, considered.

NORRIS v POLICE
[2004] SASC 270
Magistrates Appeal: Criminal

NYLAND J: This is an appeal against sentence. The appellant appeared before a stipendiary magistrate in the Elizabeth Magistrates Court on 1 June 2004 and pleaded guilty to offences charged on seven different files involving theft of cars, breaking into houses, driving disqualified and being in receipt of stolen property. The offences were charged and dealt with as follows:
File No. 03-3740
1.Break and enter building and commit offence (s 170 Criminal Law Consolidation Act 1935) (“CLCA”). [Maximum penalty : Eight years]
It was alleged that on 22 March 1999 the appellant broke into a home at Salisbury Heights and stole two television sets, three video recorders, a computer and assorted jewellery, which together amounted to the value of about $18,950. DNA evidence linked the appellant to the scene. The appellant could not be located for some time but eventually pleaded guilty to the charge on 6 May 2004. He was convicted and sentenced to nine months imprisonment.
File No. 03-9882
1.Drive under disqualification (s 91 Motor Vehicles Act 1959) (“MVA”). [Maximum penalty : Two years imprisonment]
2.Drive unregistered motor vehicle on a road (s 9 MVA). [Maximum penalty : Fine of twice registration fee for 12 months or $750 whichever is greater]
3.Drive uninsured motor vehicle on road (s 102 MVA). [Maximum penalty : Fine of $2,500 and disqualification from holding driver’s licence for not more than 12 months]
4.Drive or use motor vehicle without consent (s 86A CLCA). [Maximum penalty : Not less than three months and not more than four years imprisonment and must order disqualification for 12 months]
5.Resist Police (s 6(2) Summary Offences Act 1953). [Maximum penalty : Fine of $2,500 or six months imprisonment]
These offences were all alleged to have occurred at Ashwin Parade, Torrensville on 21 July 2002. The circumstances of this offending were outlined by the police prosecutor in the following way:
“At about 3.20 pm on Sunday 21 July 2002, police officers were stationed in…

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: NORRIS v Police [2004] SASC 270
Case: [2004] SASC 270
Decision Date: 7 September 2004

CaseChat Overview and Summary

The appellant, Norris, was charged with multiple offences arising from seven separate complaints. Norris pleaded guilty and was subsequently convicted and sentenced in the Magistrates Court. The appeal focuses on the sentencing discretion applied, specifically whether the court improperly assessed the prospects of rehabilitation and the mitigatory impact of the appellant's drug addiction. Additionally, the appeal questions whether the sentences should have been cumulative and whether the totality principle was appropriately considered.

The court was tasked with determining whether the sentencing discretion had miscarried by insufficiently weighing the prospects of rehabilitation and the potential mitigatory effect of the appellant's drug addiction. The appeal also considered whether the sentences should have been cumulative and if the totality principle was correctly applied. The court examined the sentencing remarks of the magistrate to assess if there had been a misdirection in law or an error in the exercise of the sentencing discretion.

The appeal was dismissed by the court. The reasoning provided by the magistrate was found to be adequate, with appropriate consideration given to the factors relevant to sentencing. The court held that there was no misdirection in law or error in the exercise of discretion that would warrant interference. Consequently, the sentences were upheld, and the appeal was dismissed without any alteration to the original sentences imposed by the Magistrates Court.

Orders