PERNA v Police

[2008] SASC 116

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

PERNA v POLICE

[2008] SASC 116

Judgment of The Honourable Justice Kelly (ex tempore)

18 April 2008

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Appeal against sentence - appellant sentenced to 11 months imprisonment for three charges of dishonestly taking property, two counts of non-aggravated serious criminal trespass and one charge of unlawful possession in the Adelaide Magistrates Court - the magistrate considered an inaccurate antecedent record of the appellant and in her sentencing remarks, gave weight to two previous convictions which were erroneously attributed to the appellant - respondent concedes antecedent record was inaccurate.

Held:  appeal allowed - the magistrate erred in sentencing the appellant on an erroneous factual basis - the matter is remitted to the Adelaide Magistrates Court for re-sentencing.

Magistrates Court Act 1991 s 42, referred to.

PERNA v POLICE
[2008] SASC 116

MAGISTRATES APPEAL: Criminal

KELLY J (Ex Tempore):

1. This is an appeal under s42 of the Magistrates Court Act1991 against sentence.

2. The appellant pleaded guilty to two counts of non-aggravated serious criminal trespass in a non-residential building and two counts of dishonestly taking property without the owner's consent.  Those offences were committed around 14 July 2002 and 13 October 2002.

3. At the same time the appellant also pleaded guilty to a charge of dishonestly taking property and he was found guilty, after a trial in the Magistrates Court, of unlawful possession committed on 11 October 2005 at Blair Athol.  He was convicted on each count.

4. In relation to the offending around 14 July 2002 and 13 October 2003 the appellant was sentenced to imprisonment for a period of 8 months.  In relation to the offending on 11 October 2005 the accused was sentenced to a period of 3 months imprisonment.  The learned magistrate ordered that the sentences be served cumulatively, resulting in a total head sentence of 11 months.

5. Upon the hearing of this appeal the appellant sought leave to extend the time within which to appeal to 25 February 2008.

6. The appellant's solicitor has explained the course of events over the Christmas break leading to the delay in filing the notice of appeal.

7. The respondent does not oppose the application for extension.  Accordingly, I grant the appellant an extension of time to 25 February 2008 within which to file the notice of appeal.

8. The appellant appealed on two grounds, however it is not necessary for me to go into any detail in relation to either of those grounds as the respondent has conceded that the magistrate was invited to consider an antecedent history that is inaccurate.

9. In that sense the magistrate must have fallen into error as the offender history report, tendered by the prosecution at the time of the sentencing submissions, contained what is an undisputed error relating to offences committed on 12 July 2002.  The fact that an offender history contains an error, may not always lead to the conclusion that an error in the sentencing process must have occurred.

10. However, the magistrate was dealing with a series of offences which were serious and, indeed, made even more serious by the fact that they appeared to be similar in character to offences for which the appellant had previously been convicted.  Importantly the magistrate found them relevant to the offences for which she was about to sentence the appellant.

11. Therefore, the respondent has quite properly conceded this ground of appeal.  It appears from the magistrate's sentencing remarks that she did give some weight to those convictions which were erroneously attributed to the appellant.  I will not elaborate however, I simply refer to paragraph 11 of the magistrate's remarks.

12. Apart from that matter, the sentencing magistrate's remarks were detailed and thorough and it is not necessary to make any further comment about them in light of the fact that the appellant has to be re-sentenced.

13. This morning counsel for the respondent indicated that she had available an antecedent report certified by the police.  However, the problem with that antecedent report is, it appears to have duplicated the same error, which the police prosecutor earlier tendered in the Magistrates Court.

14. It is a most unsatisfactory state of affairs that courts cannot, it seems, even after error has been made, be assured of the accuracy of antecedent reports. 

15. In the light of the undertaking given by counsel for the respondent that she will undertake to ensure that an accurate antecedent report can be obtained without delay, I propose to allow the appeal and remit the matter to the same magistrate for sentencing on the correct factual basis.

    For these reasons I make the following orders:

    1.     the appeal is allowed;

    2.     the sentence of the magistrate is set aside;

    3.the matter is remitted to the Adelaide Magistrates Court to be further dealt with according to law by the same magistrate;

    4.in the light of the undertaking given by Ms Agnew I order that the respondent provide within seven days, to the Adelaide Magistrates Court for the attention of Ms Deland, an accurate antecedent report in order that she may further consider this matter.