Police v B, WR - [2005] SASC 163

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v B, WR
Judgment of The Honourable Chief Justice Doyle
4 May 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
An appeal by the prosecution against sentence - the respondent pleaded guilty in the Magistrates Court to several groups of offences, each group being of a similar nature but committed at different times over an 18 month period - the Magistrate imposed a suspended sentence of 12 months imprisonment with a non parole period of six months - the Magistrate also refrained from revoking a bond that was in place at the time of some offences - on appeal - whether the sentence was manifestly inadequate as to disclose an error of principle - consideration of appropriateness of suspension of sentence - consideration of Court's discretion under s58(3) of the Criminal Law (Sentencing) Act 1988 to refrain from revoking bond - consideration of special circumstances that might reduce original sentence relating to the breached bond under s58(4) of the Criminal Law (Sentencing) Act 1988 - appeal allowed.
Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 58; Offenders Probation Act 1913 s 9; Magistrates Court Rules 1992 r 12.05, referred to.
R v Buckman (1988) 47 SASR 303; Police v Cadd (1997) 69 SASR 150, applied.
R v Nemer (2003) 87 SASR 168; Lawrie v The Queen (1992) 59 SASR 400; R v Marston (1993) 60 SASR 320; R v Chandra (Unreported, Court of Criminal Appeal, 1998, Judgment No S6554); R v Pham (Court of Criminal Appeal) [2003] SASC 386, considered.

POLICE v B, WR
[2005] SASC 163
Magistrates Appeal: Criminal

DOYLE CJ: This is an appeal by Police (the institution of an appeal in this name is authorised by r 12.05 of the Magistrates Court Rules 1992) against a sentence imposed by the Magistrates Court. The complaint is that the sentence is inadequate.
Mr B pleaded guilty in the Magistrates Court to a number of offences.
The first group of offences was committed in September 2002. They were the offence of non-aggravated serious criminal trespass in non-residential premises and the offence of larceny from those premises. Property to the value of about $800 was stolen, and none of the property was recovered.
The second group of offences occurred in early January 2003. They comprised the offence of non-aggravated serious criminal trespass in non-residential premises and larceny. Property to the value of $12,800 was taken, and none of the property was recovered.
On the basis of these offences, application was made to the Magistrates Court alleging that Mr B had failed to observe the conditions of a bond. The bond was entered into in February 2002. It was the basis upon which a sentence of 12 months’ imprisonment imposed on Mr B was suspended. The bond was for a period of 18 months. The suspended sentence was imposed in respect of 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 Police v B, WR

Details

AGLC: Police v B, WR [2005] SASC 163
Case: [2005] SASC 163
Decision Date: 4 May 2005

CaseChat Overview and Summary

The prosecution has appealed against the sentence imposed on the respondent by the Magistrates Court. The respondent pleaded guilty to multiple groups of offences, each group being similar in nature but committed at different times over an 18-month period. The Magistrate imposed a suspended sentence of 12 months imprisonment, with a non-parole period of six months. Additionally, the Magistrate decided not to revoke a bond that was in place at the time of some offences.

The legal issues before the court were whether the sentence was manifestly inadequate, indicating an error of principle, the appropriateness of the suspension of the sentence, and the court's discretion under section 58(3) of the Criminal Law (Sentencing) Act 1988 to refrain from revoking the bond. The court also considered whether there were special circumstances under section 58(4) of the Act that might reduce the original sentence relating to the breached bond.

In considering these issues, the court found that the sentence imposed by the Magistrate was manifestly inadequate. The court determined that the suspension of the sentence was not appropriate, and that there were special circumstances under section 58(4) of the Act that warranted a reduction in the original sentence. The court exercised its discretion under section 58(3) of the Act to refrain from revoking the bond.

The appeal was allowed, and the case was remitted to the Magistrates Court for resentencing.

Orders