PATTERSON v POLICE - [2010] SASC 224

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PATTERSON v POLICE
[2010] SASC 224
Judgment of The Honourable Justice Kelly
21 July 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - OBTAINING PROPERTY BY DECEPTION - SENTENCE
Appellant appealed against sentence imposed on guilty plea to 17 counts of deception and four counts of dishonest dealing with documents - Magistrate was asked to and did take into account 17 other uncharged counts of deception - appellant sentenced to three years and six months imprisonment with non-parole period of 20 months - whether Magistrate erred in applying discount for assistance given to authorities to non-parole period but not to head sentence - updated psychological report ordered.
Held: Appeal allowed - discount for assistance given to authorities should have been applied to both the non-parole period and the head sentence - new head sentence imposed of two years and three months - new non-parole period imposed of 12 months - sentence backdated to 27 February 2010.
R v Wilson (2000) 211 LSJS 384; Director of Public Prosecutions (Cth) v AB (2006) 94 SASR 316, considered.

PATTERSON v POLICE
[2010] SASC 224
Magistrates Appeal: Criminal
KELLY J:

The appellant was sentenced in the Adelaide Magistrates Court on 16 February 2010 for 17 counts of deception and four counts of dishonest dealing with documents.
The appellant pleaded guilty to the charges and asked that a further 17 counts of deception be taken into account. All of the offending for which the appellant was to be sentenced took place between 27 February 2007 and 7 May 2009. The factual basis put before the Magistrate for the purpose of sentence was contained in a statement of agreed facts which was tendered to the Court. That statement referred to both the matters charged and the matters to be taken into consideration. The offending involved fraud committed against various employers as well as the misuse of credit cards which belonged to others.
The offending took place while the appellant was on a good behaviour bond, had other matters proceeding in the Magistrates Court and while the appellant was participating in the Magistrates Court mental health diversion program. The learned Chief Magistrate sentenced the appellant to three years and six months imprisonment and imposed a non‑parole period of 20 months. The sentence was to commence on 27 February 2010. At the date when the Chief Magistrate sentenced the appellant she was serving another term of imprisonment for earlier fraud related offending. The appellant had a balance of 10 days still to serve in respect of that sentence as at 16 February 2010.
The appellant’s notice of appeal contains one ground of appeal, a complaint that the sentence was manifestly excessive.
On the hearing of the appeal the appellant contended that the…

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 PATTERSON v POLICE

Details

AGLC: PATTERSON v POLICE [2010] SASC 224
Case: [2010] SASC 224
Decision Date: 21 July 2010

CaseChat Overview and Summary

The appellant, Patterson, appealed against the sentence imposed by the Magistrates Court of South Australia. The appellant had pleaded guilty to 17 counts of deception and four counts of dishonest dealing with documents. The magistrate took into account 17 additional uncharged counts of deception and sentenced the appellant to three years and six months imprisonment, with a non-parole period of 20 months. The appeal centred on the magistrate's application of a discount for assistance given to authorities, which was applied to the non-parole period but not to the head sentence. The court was required to determine whether the magistrate erred in this respect.

The legal issue before the court was whether the magistrate erred in applying the discount for assistance to the non-parole period but not to the head sentence. The court considered whether this approach was consistent with the principles of sentencing for obtaining property by deception and dishonest dealing with documents. The appellant argued that the discount should have been applied to the head sentence, not just the non-parole period. The court was tasked with reviewing the application of the sentencing principles and determining whether the magistrate had erred in this regard.

The court found that the magistrate had erred in the application of the discount for assistance. The court held that the discount should have been applied to the head sentence, not just the non-parole period. The court emphasised the importance of consistency in the application of sentencing principles, particularly in cases involving multiple offences. The court allowed the appeal and remitted the matter to the Magistrates Court for resentencing. An updated psychological report was ordered to assist in the resentencing process.

Orders