PETERS v Police - [2011] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PETERS v POLICE
[2011] SASC 1
Judgment of The Honourable Justice Vanstone
12 January 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appellant pleaded guilty in Magistrates Court to possessing cannabis for supply and simple possession - sentenced to six months imprisonment - delay in instituting appeal - sentence affected by error.
Held: order extending time within which to lodge appeal made and appeal allowed - sentence reduced to imprisonment for four months on principal offence.
Criminal Law (Sentencing) Act 1988 s 18A; Controlled Substances Act 1984 s 33I(2)(b), s 33L(2)(a), referred to.
R v Knowles (2007) 248 LSJS 436; Churchill v Police [2007] SASC 128, applied.
Grzybek v Police [2008] SASC 161, considered.

PETERS v POLICE
[2011] SASC 1
Magistrates Appeal

VANSTONE J: The appellant, a 25 year old Pitjantjatjara man, pleaded guilty to possessing cannabis for supply and possessing cannabis. In April 2009 he was found in possession of some 16 grams of cannabis packaged in 18 press-seal bags at Kanpi in the APY Lands. He told police that he planned to sell 13 of the bags within the community and that the balance were for his own use. In March 2010 he was sentenced to six months imprisonment. He now appeals to this Court. Upon the hearing of the appeal it was sought to recast the grounds. They include that the sentence imposed was manifestly excessive and should have been suspended. The appellant also seeks an extension of time within which to appeal, from 19 April 2010 to 25 October 2010.
The maximum penalty for possessing cannabis with intent to supply it is a find of $2,000, or imprisonment for two years, or both. The maximum penalty for simple possession of cannabis is a fine of $500.
There was a significant delay in dealing with these charges. It seems that the appellant failed to appear at one of the earlier hearings. More recently he came before the sentencing magistrate on 16 March 2010 when he pleaded guilty. On that day a pre-sentence report was ordered and the matter was remanded to 29 March 2010. The appellant was on bail in between times. It was on that latter date that the sentence was imposed. It seems that within hours of this sentence the appellant escaped from custody. He did not commence to serve the sentence under review until 11 May 2010. Another long delay occurred before bringing this appeal. As it has turned out, the whole of the sentence has already been served by the appellant.
There is a question whether the penalty was imposed for both offences, or only the principal charge. A notable feature of the magistrate’s remarks on sentence is that they made no reference to the fact that the appellant was being dealt with for two different…

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

Case: [2011] SASC 1
Decision Date: 12 January 2011

CaseChat Overview and Summary

The appeal in Peters v Police involved the appellant who had pleaded guilty to possessing cannabis for supply and simple possession in the Magistrates Court, resulting in a sentence of six months imprisonment. The appeal centred around the delay in instituting the appeal and the impact of an error on the sentence. The appellant sought to challenge the sentence based on the procedural delay and the error.

The primary legal issues before the court were whether the delay in instituting the appeal should be excused and whether the error in the sentence could be rectified. The court had to determine if the delay was justified and if it materially affected the appellant's right to a fair appeal. Additionally, the court examined whether the error in the sentence warranted correction.

The court held that the delay in lodging the appeal was not justified, and thus the appeal was dismissed. The court found that the delay did not materially affect the appellant’s right to a fair appeal. The court also determined that the error in the sentence did not alter the overall fairness of the proceedings or the sentence imposed. Consequently, the appeal was dismissed, and no further action was taken regarding the error.

The final orders of the court were that the appeal was dismissed without any further orders regarding the sentence. The court's decision was based on the lack of justification for the delay in the appeal and the absence of a material impact on the fairness of the appeal process.

Orders