Police v Alikaris - [2000] SASC 163

POLICE v ALIKARIS
[2000] SASC 163

Magistrates Appeal: Criminal

DEBELLE J. (ex tempore) This is a prosecution appeal against an order made by a magistrate revoking a sentence previously ordered by him and substituting an order that the respondent be convicted without penalty.
On 1 November 1999 the respondent pleaded guilty in the Magistrates Court at Port Augusta to two offences committed on 27 September 1999 at Port Augusta. The first offence was that he had threatened to cause harm to a woman, who I will call “M”, contrary to s 19(2) of the Criminal Law Consolidation Act 1935. The second was refusing without reasonable excuse to give his full name to police officers when required to do so contrary to s 74A of the Summary Offences Act 1953.
At the time of the offence, the respondent had had a relationship with M for about 12 months. Between 3.00 pm and a little after midnight on 27 September 1999, the respondent had telephoned M on more than 90 occasions. The calls were at the rate of more than one per minute between 11.14 pm on 27 September and 12.40 am on 28 September. The respondent and M had had an argument at M’s residence earlier in the day and the respondent had produced a kitchen knife from his person and cut the inside of his left elbow before leaving the premises. In one of his many calls, the respondent had said that he was “coming around to get the fence or the money and stab you”. Because the respondent had demonstrated that he was prepared to use a knife to inflict physical injury, M was in grave fear for her safety.
At about 11.30 pm on 27 September police officers had gone to the respondent’s flat to investigate the offence. The respondent had answered the door but had slammed it in the face of the police officers. Police officers later forcibly gained entry to the flat and the respondent refused to give his full name.
The respondent was arrested. He remained in custody until he appeared before the magistrate on 1 November 1999. Bail had earlier been refused. After the respondent’s plea of guilty the magistrate convicted him on both offences and, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, he imposed one sentence in relation to both offences. The magistrate sentenced the respondent to a period of imprisonment for 36 days, backdated to 27 September. He also imposed pecuniary penalties totalling $164. The sentence of 36 days was equivalent to the period the respondent had spent in custody.
The respondent was thereupon released from the Port Augusta Gaol. That did not end the matter because the offences on 27 September had been committed while the respondent was on parole. On 14 December 1998 he had been convicted on three counts of breaking and entering a building and committing offences therein. He was sentenced to 20 months imprisonment with a non-parole period of nine months.…

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 Police v Alikaris

Details

AGLC: Police v Alikaris [2000] SASC 163
Case: [2000] SASC 163
Decision Date: 5 June 2000

CaseChat Overview and Summary

The case of Police v Alikaris involved a prosecution appeal against a magistrate's decision to revoke a sentence and substitute a new order that the respondent be convicted without penalty. The respondent, who had previously pleaded guilty to two offences, was sentenced to imprisonment and fined. However, after the sentencing, it was discovered that the respondent was on parole at the time of the offence, leading to the cancellation of his parole and a warrant for his arrest. The magistrate later revoked the imprisonment sentence and ordered a new conviction without penalty, without the presence of the prosecution or regard to the prescribed legal procedures. The prosecution appealed against this decision, arguing that the magistrate did not have the power to make such an order.

The primary legal issue in this case was whether the magistrate had the authority under section 76B of the Summary Procedure Act to revoke the original sentence and order a new conviction without penalty. The court held that the magistrate's actions went beyond the scope of section 76B, which only allows for the correction of errors in a conviction or order, not the reconsideration of the entire penalty. The court found that the magistrate's decision was not a mere correction of an error but rather a fresh exercise of sentencing discretion, which was not permissible under the statute. Additionally, the court noted that the magistrate's order was made in breach of procedural fairness by not providing notice to the prosecution.

While the court found that the sentence imposed by the magistrate was inadequate, it decided not to sentence the respondent afresh due to the risk of double jeopardy and the respondent's reconciliation with the victim. The court dismissed the appeal but allowed the magistrate's order to stand to avoid further complications and to support the respondent's prospects for rehabilitation.

Orders