Paull v Police - [2015] SASC 25

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PAULL v POLICE
[2015] SASC 25
Judgment of The Honourable Justice Sulan
25 February 2015
MAGISTRATES - ORDERS AND CONVICTIONS - SENTENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - FAILURE TO EXERCISE DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
Appeal against sentence. The appellant pleaded guilty to three counts of theft and seven counts of making off without payment for fuel. The appellant was sentenced to six months' imprisonment and ordered to pay compensation. The sentencing Magistrate declined to suspend the sentence. The Magistrate erred by imposing a compensation order without adequately considering s 13 of the Criminal Law (Sentencing) Act 1988 (SA). The refusal to suspend the sentence was plainly unjust in all the circumstances. Appellant resentenced to six weeks' imprisonment, suspended upon the appellant entering into a good behaviour bond for 12 months.
Criminal Law Consolidation Act 1935 (SA) s 134, s 144(1); Criminal Law (Sentencing) Act 1988 (SA) s 3, s 13, s 18A, s 53, s 70(1), referred to.
Noble v Police [2014] SASC 156; R v Copeland (No 2) (2010) 108 SASR 398, applied.
R v Gibbins [1936] SASR 36; Ware v Betts (1986) 134 LSJS 212; Stenecker v Police [2014] SASC 68, discussed.

PAULL v POLICE
[2015] SASC 25
Magistrates Appeal: Criminal

SULAN J: The appellant and defendant, Matthew James Paull, pleaded guilty in the Magistrates Court to three counts of theft, contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), and to seven counts of making off without payment, contrary to s 144(1) of the Act. The maximum penalty for theft is ten years’ imprisonment. Each offence of making off without payment is subject to a maximum penalty of two years’ imprisonment.
The Magistrate imposed a penalty of imprisonment of three months in respect of each count of theft, having given credit of one month for the pleas of guilty. Those sentences were to be served concurrently. As to the offences of making off without payment, the Magistrate imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) of three months’ imprisonment, having given credit of one month for the pleas of guilty, with that sentence to commence at the expiration of the sentence imposed in relation to the thefts. The total sentence, therefore, was six months’ imprisonment, reduced from eight months on account of the guilty pleas. The Magistrate declined to suspend the sentence. In addition, the defendant was ordered to pay compensation in the amount of $815.84.
The grounds of appeal are:
1.That the sentence imposed was manifestly excessive.
2.That the learned Magistrate erred in not suspending part or all of the sentence.
3.That the learned Magistrate erred in making the sentence for the offences of making off without payment cumulative to the sentence for 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 Paull v Police

Details

AGLC: Paull v Police [2015] SASC 25
Case: [2015] SASC 25
Decision Date: 25 February 2015

CaseChat Overview and Summary

The appeal in Paull v Police was heard by the South Australian District Court, with the appellant challenging the sentence imposed by the Magistrates Court. The appellant, who had been found guilty of multiple counts of theft and making off without payment, argued that the sentence was manifestly excessive, that the Magistrate should have suspended part or all of the sentence, and that the Magistrate erred in making the sentence for the offences cumulative to the sentence for the theft offences. Additionally, the appellant contended that the Magistrate failed to adequately consider his ability to pay compensation as required by Section 13 of the Sentencing Act.

The primary legal issues for the court to determine were whether the sentence imposed was manifestly excessive, whether the Magistrate erred in not suspending part or all of the sentence, whether the Magistrate erred in making the sentence for the offences cumulative, and whether the Magistrate failed to adequately consider the appellant's ability to pay compensation under Section 13 of the Sentencing Act. The court was required to balance the need for punishment and deterrence with the appellant's personal circumstances and capacity to pay compensation.

The court found that the sentence imposed was not manifestly excessive, as it took into account the appellant's personal circumstances and the need for deterrence. However, the court did find that the Magistrate erred in not adequately considering the appellant's ability to pay compensation under Section 13 of the Sentencing Act. The court noted that Section 13 requires a magistrate not to make a compensation order unless satisfied of the appellant's ability to make payment, and that referring the appellant to the Fines Enforcement and Recovery Officer to enter an alternative arrangement does not satisfy this requirement. The court also found that the Magistrate failed to adequately consider the effect of a six-month sentence of imprisonment on the appellant's employment and the resulting impact on his dependant children.

The court allowed the appeal in part, set aside the sentence imposed by the Magistrates Court, and remitted the matter back for resentencing. The court emphasised the importance of considering the appellant's ability to pay compensation and the potential impact of the sentence on his employment and dependants when imposing a sentence.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of appeal are:1.That the sentence imposed was manifestly excessive.2.That the learned Magistrate erred in not suspending part or all of the sentence.3.That the learned Magistrate erred in making the sentence for the offences of making off without payment cumulative to the sentence for the theft offences.Background As to counts 1 and 2, the owners of the vehicles parked their cars at the Mitcham train station and, in each case, a numberplate was stolen from the vehicle whilst parked. In the case of count 3, the owner of that vehicle parked her car in the driveway of her flat at Blackwood. The numberplate was stolen whilst it was parked in the driveway. As to counts 4 to 10, in each case on dates between 10 April 2014 and 12 September 2014, at various locations, a motor vehicle exhibiting one of the stolen plates was driven into a service station and the driver obtained fuel and left without making payment. The appellant was apprehended when a police officer recognised his vehicle as being similar in appearance to a car which had made off without payment for fuel on 12 September 2014 at a service station at Meadows. Police attended at Caring Choice Residential Care, Mount Barker, where they spoke to the appellant who they recognised as the person who had been the driver of that vehicle. When police searched the appellant’s car, they located two of the numberplates which had been attached to vehicles when the driver had made off without paying for fuel. The appellant admitted the offending and cooperated with police. The solicitor who appeared for the appellant before the Magistrate submitted that he had separated from his de facto partner of 16 years when he discovered that his partner had been involved in an affair with another man. He and his partner have two children. When they separated, the appellant moved to live with his parents at Morphett Vale. His partner remained in their home with their two children at Victor Harbor. The appellant had lost his job and was reliant upon Centrelink benefits. He continued to financially support his former partner and children. In addition, he paid rent of $100 per week to his parents for accommodation. He continued to see his children and was required to drive from Morphett Vale to Victor Harbor regularly. He was also travelling to attend Careers Australia to obtain nursing qualifications. He had insufficient funds to pay for petrol and, therefore, devised the plan to steal fuel. The total value of fuel taken from various service stations amounted to $815.84. After the appellant obtained employment, he ceased stealing fuel. When he appeared before the Magistrate, the appellant was working as a carer and receiving approximately $1500 per week in wages. The appellant had been previously convicted in 1998 of five offences of larceny and one offence of false pretences committed in 1993. He received a sentence of ten days’ imprisonment in respect of the first count of larceny, suspended on him entering into a bond to be of good behaviour for 12 months. No penalty was imposed for the other offences.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Stenecker v Police, Kourakis CJ, when considering an appeal against a failure to suspend a sentence of imprisonment said: [6]It cannot be said that it was manifestly unreasonable of the Magistrate not to suspend the sentence in whole.[6] [2014] SASC 68, [11].Consideration After I had reserved my judgment, I had regard to the Magistrate’s order for compensation which forms part of the sentence.[7] Section 3 of the Sentencing Act defines “pecuniary sum” as including compensation. Section 13 of the Sentencing Act provides:[7] Compensation53 (1) Subject to this section, a court may make an order requiring a defendant to pay compensation for injury, loss or damage resulting from the offence of which the defendant has been found guilty or for any offence taken into account by the court in determining sentence for that offence.Order for payment of pecuniary sum not to be made in certain circumstances13 (1) The court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that – (a)the defendant would be unable to comply with the order; or(b) compliance with the order would unduly prejudice the welfare of the dependants of the defendant,(and in such a case the court may, if it thinks fit, order the payment of a lesser amount).(2)Subject to subsection (3), the court is not obliged to inform itself as to the defendant’s means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.(3)In considering whether the defendant would be able to comply with the order, the court should have regard to – (a)the fact that the defendant could enter into an arrangement under Part 9 Division 3; and(b)any information available to the court as to other pecuniary sums that have been paid, or are payable, by the defendant. The section provides that a court must not make an order for compensation if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that the defendant would be unable to comply with the order, or compliance with the order would unduly prejudice the welfare of dependants of the defendant. I invited the parties to provide written submissions on whether the Magistrate erred in failing to consider the appellant’s ability to pay compensation pursuant to s 13 of the Sentencing Act. Counsel for the appellant then sought leave to amend the Notice of Appeal to include a ground of appeal that the Magistrate erred in not adequately considering whether the appellant was able to comply with an order of compensation, and failing to consider whether such an order would unduly prejudice the welfare of his dependants. I grant leave to amend the Notice of Appeal to include this additional ground. Counsel for the appellant and respondent each provided written submissions on this matter. Counsel for the appellant contends that s 13 is a mandatory provision requiring a magistrate not to make a compensation order unless the magistrate is satisfied of the appellant’s ability to make payment. Counsel submits that referring the appellant to the Fines Enforcement and Recovery Officer to enter an alternative arrangement does not satisfy the requirement under s 13 of the Sentencing Act. The Magistrate failed to adequately consider the effect of a six-month sentence of imprisonment on the appellant’s employment and the resulting impact on his dependant children. It is contended that the failure to adequately consider s 13 amounts to an identifiable error.