Phillips v Police - [2014] SASC 5

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PHILLIPS v POLICE
[2014] SASC 5
Reasons for Decision of The Honourable Justice Nicholson
3 February 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - GENERALLY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - LARCENY OR STEALING
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - TRESPASS TO LAND
On 18 November 2005, the appellant, along with his two co-accused, was found guilty in the Magistrates Court of five counts of criminal trespass in a non-residential building contrary to s169(1) of the Criminal Law Consolidation Act 1935 (SA) and three counts of larceny contrary to s131 of the Criminal Law Consolidation Act. The appellant was sentenced in the Magistrates Court on 7 August 2013 to a head sentence of four years imprisonment with a non-parole period of three years.
On appeal, the appellant complained, inter alia: (1) that the sentence was manifestly excessive; (2) that the sentencing Magistrate failed to take the appellant’s rehabilitation prospects into account; and (3) of a lack of parity between the appellant’s sentence and that of his co-accused. The appellant also made an application for an extension of time within which to file his notice of appeal which was unopposed by the Crown.
Held: (1) the sentence was not manifestly excessive; (2) the Magistrate took into consideration all relevant matters, including the appellant’s personal circumstances; and (3) there was no excessive disparity between sentences.
Orders:
1. The time within which the notice of appeal is to be filed is extended to 23 October 2013.
2. Appeal is dismissed.
Criminal Law Consolidation Act 1935 s169; Criminal Law (Sentencing) Act 1935 s18A, referred to.
Corbett v Police [2006] SASC 170; Rafferty v Police [2006] SASC 169; R v Malesevic [1999] SASC 321; Kells v Police [2007] SASC 224; R v Penney [2012] SASCFC 16; Lowe v R (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295; R v MacGowan (1986) 42 SASR 580; R v Tiddy [1969] SASR 575; McGovern v R (1983) 36 SASR 170; R v Cox (1996) 66 SASR 152; R v Kite (1971) 2 SASR 94; Charara v DPP (2001) 120 A Crim R 225, considered.

PHILLIPS v POLICE
[2014] SASC 5
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 18 November 2005, following a trial in the Magistrates Court, the appellant and two co-accused, Sean Rafferty and Paul Corbert,[1] were found guilty of five counts of serious criminal trespass in a non-residential building contrary to s169(1) of the Criminal Law Consolidation Act 1935 and three counts of larceny, contrary to s131 of the Criminal Law Consolidation Act (as that section then stood). Mr Rafferty…

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 Phillips v Police

Details

AGLC: Phillips v Police [2014] SASC 5
Case: [2014] SASC 5
Decision Date: 3 February 2014

CaseChat Overview and Summary

In the case of Phillips v Police, the appellant, Phillips, was convicted of multiple counts of criminal trespass and larceny by the Magistrates Court. Phillips was sentenced to four years imprisonment with a non-parole period of three years. The appellant appealed the sentence on the basis that it was manifestly excessive and that there was an excessive disparity in sentencing compared to his co-accused. The appeal was heard by the Supreme Court of South Australia.

The primary legal issues before the court were whether the sentence imposed on Phillips was manifestly excessive, whether the Magistrate took into account all relevant matters, and whether there was an excessive disparity in sentencing compared to his co-accused. The court considered the principles of sentencing and the relevant statutory provisions, including sections 169(1) and 131 of the Criminal Law Consolidation Act 1935 (SA). The court also referenced the precedent set in R v Kite, which emphasised that a disparity in sentencing does not necessarily indicate that a sentence is excessive.

The court held that the sentence was not manifestly excessive and that the Magistrate had taken into account all relevant matters, including the appellant’s personal circumstances. The court noted that the sentence imposed on Phillips was not disproportionate to the severity of the crimes committed. The court further held that there was no excessive disparity in sentencing, as the sentence imposed on Phillips' co-accused was not before the court, and the appellant had no right to complain if someone else was treated more leniently than he deserved. The appeal was dismissed, and the time within which the notice of appeal was to be filed was extended to 23 October 2013. The court reserved any consequential orders for further discussion.

Orders

Orders of the court

Held: (1) the sentence was not manifestly excessive; (2) the Magistrate took into consideration all relevant matters, including the appellant’s personal circumstances; and (3) there was no excessive disparity between sentences.

Orders:

1. The time within which the notice of appeal is to be filed is extended to 23 October 2013.

2. Appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

In any event, this is one of those cases where the sentence imposed on Mr Rafferty can be seen as so inadequate that to rely upon that in order to pursue parity, insofar as the appellant is concerned, should be seen as compounding the error in a way unacceptable to the public conscience. In my view, there is no real sense of grievance available to the appellant but, if there were to be, it is one that ought to be tolerated in the public interest.[17] In R v Kite[18] Bray CJ, Hogarth and Sangster JJ said this.It has often been said, and we repeat it, that the mere fact that one convicted person has received too light a sentence is no reason why another convicted person should receive similar treatment. If there is excessive disparity, it does not follow that the one with the heavier sentence was treated too severely; it may be that the one with the lighter sentence was treated too leniently. Often in these cases the disparity should ideally be remedied by increasing the sentence of the one, rather than by reducing the sentence of the other. But we can only deal with the appeal before us. We have no power to interfere with the sentence imposed on [the appellant’s co-accused] that sentence is not before us. If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved.In my view, there has been no excessive disparity in this case and in any event the circumstances are such that the observations in Kite are apposite. [17] See R v MacGowan at 583.[18] (1971) 2 SASR 94 at 96.Conclusion I make the following orders.1. The time within which the notice of appeal is to be filed is extended to 23 October 2013.2.The appeal is dismissed. I will hear the parties as to any consequential orders

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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