Police v Bicanin - [2011] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BICANIN
[2011] SASC 108
Judgment of The Honourable Justice Duggan
20 July 2011
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Appeal against sentence imposed upon respondent by magistrate – respondent pleaded guilty to seven offences – respondent also admitted to breaching two good behaviour bonds relating to prior offences – the first breached bond related to a term of imprisonment for 21 days – the second breached bond related to a term of imprisonment for three months – respondent convicted of seven offences to which he pleaded guilty – no penalty imposed for offences 1 to 3 inclusive – magistrate sentenced respondent pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to total period of imprisonment for six months in respect of offences 4 to 7 inclusive – sentence to be served cumulatively upon combined sentence for three months and 21 days resulting from revocation of suspension – magistrate then suspended the total sentence of nine months and 21 days upon respondent entering into a fresh good behaviour bond – whether the magistrate erred in suspending the total sentence in that part of sentence related to the revocation of the two previously suspended sentences.
Held: Appeal allowed – order of magistrate set aside – sentencing process miscarried when previously suspended sentences were again suspended – order revoking suspension of sentence of imprisonment for three months and sentence of imprisonment for 21 days – order that sentences be served concurrently – in relation to offences 1 to 7 respondent sentenced afresh – respondent convicted without penalty on offences numbered 1 to 3 inclusive – convictions recorded on offences 4 to 7 inclusive and a global penalty of imprisonment for four months imposed – the sentences which were previously revoked to be served concurrently with the sentence of four months.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 58, s 58(3), s 58(4), s 58(4)(a); Offenders Probation Act 1913 (SA) s 9(5), s 9(6), referred to.
R v Buckman (1988) 47 SASR 303, discussed.
Police v Cadd (1997) 69 SASR 150, considered.

POLICE v BICANIN
[2011] SASC 108
Magistrates Appeal: Criminal

DUGGAN J: This is a prosecution appeal against sentence imposed upon the respondent in the Holden Hill Magistrates Court.
The respondent pleaded guilty to the following offences:
1Driving while disqualified at Nailsworth on 15 January 2010.
2Driving an unregistered vehicle at Nailsworth on 15 January 2010.
3Driving an uninsured vehicle at Nailsworth on 15 January 2010.
4Dishonestly taking a bicycle and helmet without the owner’s consent at North Adelaide on 24 November 2010.
5Driving…

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 Bicanin

Details

AGLC: Police v Bicanin [2011] SASC 108
Case: [2011] SASC 108
Decision Date: 20 July 2011

CaseChat Overview and Summary

The case of Police v Bicanin involved an appeal against the sentence imposed by a magistrate on the respondent who had pleaded guilty to seven offences. The respondent had also admitted to breaching two good behaviour bonds from prior offences. The first bond involved a 21-day imprisonment term, and the second involved a three-month imprisonment term. After the respondent pleaded guilty to the new offences, the magistrate imposed no penalty for the first three offences but sentenced the respondent under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to a total imprisonment period of six months for the remaining four offences. The magistrate then suspended the total sentence of nine months and 21 days upon the respondent entering into a fresh good behaviour bond. The appeal focused on whether the magistrate erred in suspending the total sentence, particularly the part of the sentence related to the revocation of the two previously suspended sentences.

The legal issues before the court were primarily concerned with the correct application of sentencing principles and whether the magistrate erred in the sentencing process. The key issue was whether the magistrate miscarried in the sentencing process by again suspending the previously revoked sentences. The court had to determine whether the magistrate acted on the wrong principle when imposing the sentence, which would justify setting aside the order and re-sentencing the respondent.

The court found that the sentencing process miscarried when the magistrate suspended the sentences that had already been revoked. This was a significant error as it meant the magistrate did not correctly consider the totality of the sentences and how they should be served. The court held that the appeal was allowed and set aside the magistrate's order. The court revoked the suspension of the three-month and 21-day sentences and ordered that these sentences be served concurrently with the new sentence. The court then re-sentenced the respondent for all seven offences, imposing no penalty for offences one to three, and a global penalty of imprisonment for four months for offences four to seven. The previously revoked sentences were to be served concurrently with the new four-month sentence.

Orders