Paton v Low - [2011] SASC 12

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PATON v LOW
[2011] SASC 12
Judgment of The Honourable Justice Nyland
18 February 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE GOVERNMENT - DEFRAUDING THE COMMONWEALTH
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY
Appeal against sentence - appellant pleaded guilty to six counts of obtaining financial advantage from a Commonwealth entity - sentenced to four months imprisonment - whether Magistrate erred in declining to immediately release appellant on recognisance - whether Magistrate gave insufficient weight to personal circumstances of offender - whether Magistrate erred in imposing a sentence which lacked parity with other sentences imposed on the same day - whether Magistrate placed too much reliance on appellant's previous convictions - no exceptional circumstances justifying a more merciful approach - previous conviction only one aspect relied upon by Magistrate - appeal dismissed.
Criminal Code Act 1995 (Cth) s 135.2(1); Crimes Act 1914 (Cth) ss 4B(2), 4K, referred to.
Luxton v Commonwealth Services Delivery Agency [2006] SASC 257, distinguished.
Kovacevic v Mills (2000) 76 SASR 404, discussed.
Keeley v Department of Social Security (Unreported Judgment, Supreme Court of South Australia, Mullighan J, 30 July 1993, Judgment No S4075), considered.

PATON v LOW
[2011] SASC 12
Magistrates Appeal

NYLAND J: This is an appeal against sentence. The appellant was charged on complaint with six counts of obtaining a financial advantage from a Commonwealth entity contrary to the provisions of s 135.2(1) Criminal Code 1995 (Cth). The maximum penalty for this offence is 12 months imprisonment and/or a fine of $6,600.[1] On 8 October 2010 the appellant appeared before a Stipendiary Magistrate in the Adelaide Magistrates Court and pleaded guilty to all charges. He was sentenced on 22 October 2010. Pursuant to the provisions of s 4K Crimes Act 1914 (Cth) the Magistrate imposed one penalty with respect to all offences, namely a sentence of imprisonment of five months which he discounted to four months by reason of the pleas of guilty. He declined to make an order for immediate release and directed that the sentence of four months imprisonment commence forthwith. In addition, he made an order for reparation in the sum of $5,328.90.
[1] Crimes Act 1914 (Cth), s 4B(2).
The appellant has appealed against that sentence on the following grounds:
(1)That the learned Magistrate erred in declining to exercise his discretion to release the appellant forthwith upon recognisance;
(2)That the learned Magistrate imposed a sentence which lacked parity with other sentences imposed on the same day; and
(3)That the learned Magistrate erred in placing too much reliance on the appellant’s previous convictions.
Circumstances of the offending
The circumstances of the offending are outlined in the summary of facts provided by the respondent to the learned Magistrate and are not in dispute. The charges represented a course of conduct over a total period of about seven…

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 Paton v Low

Details

AGLC: Paton v Low [2011] SASC 12
Case: [2011] SASC 12
Decision Date: 18 February 2011

CaseChat Overview and Summary

The appellant, Paton, appealed against his sentence which was handed down by the Magistrates Court of South Australia, after he pleaded guilty to six counts of obtaining financial advantage from a Commonwealth entity. The sentence imposed was four months imprisonment. Paton contested the decision of the Magistrate not to release him on recognisance, argued that insufficient weight was given to his personal circumstances, and claimed that the sentence lacked parity with other sentences imposed on the same day. Paton also contended that the Magistrate erred in placing too much reliance on his previous convictions.

The Supreme Court examined whether the Magistrate erred in declining to immediately release Paton on recognisance, whether the weight given to Paton’s personal circumstances was insufficient, whether the sentence imposed lacked parity, and whether the Magistrate placed too much reliance on Paton’s previous convictions. The Court found that the Magistrate had considered all relevant factors, including Paton's prior offending history and the fact that he committed three of the present offences while being subject to a bond requiring good behaviour. The Court also noted that the offending persisted for some months after the completion of a rehabilitation program. The Court concluded that there were no exceptional circumstances justifying a more merciful approach to sentencing and that the previous conviction was only one aspect relied upon by the Magistrate.

The appeal was dismissed by the Court, which found that the Magistrate had appropriately exercised his discretion. The Court found no error in the approach taken by the Magistrate, as he had considered all relevant factors in imposing the sentence. The Court also found that Paton's personal circumstances did not bring him within the category of the 'exceptional case' referred to in Kovacevic v Mills, which would permit a more merciful approach to the question of penalty. The appeal was therefore dismissed.

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

In this case the previous conviction of the appellant was not in the scheme of things particularly serious, but it is clear from the Magistrate’s remarks that the conviction was only one aspect of the matter which influenced him in emphasising the need for personal deterrence and thereby decline to exercise his discretion to order the immediate release of the appellant. In addition to his prior offending history, the appellant committed three of the present offences whilst being subject to the bond imposed on 14 January 2008, which required the appellant to be of good behaviour. In addition, the offending persisted for some months after the completion of the program which was relied upon by the appellant as evidence of his rehabilitation. Conclusion In this case, the learned Magistrate provided detailed remarks with respect to penalty. He appears to have had regard to all relevant matters. There does not appear to be anything arising out of the appellant’s personal circumstances which would bring him within the category of the ‘exceptional case’ referred to in Kovacevic v Mills which would permit a more merciful approach to the question of penalty. No error has been identified in the approach taken by the learned Magistrate. The appeal is therefore dismissed.

Ratio Decidendi

Legal Principle Established

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