Police v Bieg - [2008] SASC 261

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BIEG
[2008] SASC 261
Judgment of The Honourable Justice David
29 September 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING - OTHER MATTERS
Prosecution appeal against sentence - magistrate sentenced respondent to four years imprisonment with two year non-parole period, suspended upon respondent entering into bond - whether magistrate erred in finding prison conditions were relevant to sentence - whether magistrate erred in relying on matters in sentencing respondent without giving parties opportunity to make submissions or call evidence as to those matters.
Held: Appeal allowed on grounds (1)a and (1)c - sentence set aside and matter remitted to another magistrate for resentencing - prison conditions only relevant insofar as they might impact peculiarly on a particular prisoner - parties should be invited to make submissions and call evidence on any matters which are determinative to the sentence.
Criminal Law Consolidation Act 1935 (SA) s 20, s 134(1), s 169; Criminal Law (Sentencing) Act 1988 (SA) s 38(1), referred to.
Pantorno v The Queen (1989) 166 CLR 466; R v Godwin (2001) 80 SASR 195; R v Golding (1980) 24 SASR 161; R v Liddy (No 2) (2002) 84 SASR 231; R v Major (1998) 70 SASR 488; R v Smith (1987) 44 SASR 587, considered.

POLICE v BIEG
[2008] SASC 261
Magistrates Appeal
DAVID J.
Introduction

This is a prosecution appeal against sentence. The respondent pleaded guilty to six counts of non‑aggravated serious criminal trespass in a place of residence (contrary to s 169 of the Criminal Law Consolidation Act 1935 (SA)), eight counts of theft (contrary to s 134(1) of the Criminal Law Consolidation Act) and one count of common assault (contrary to s 20 of the Criminal Law Consolidation Act). He was given a total sentence of four years imprisonment, with a non‑parole period of two years. The sentence was suspended upon him entering into a bond to be of good behaviour with conditions.
The appellant argues that the basis of law upon which the magistrate suspended the sentence was incorrect in that he used his perception, that there was overcrowding in the South Australian prison system, as a basis for either suspending the sentence or lowering the non‑parole period. The appeal focuses, first, on whether that is a matter that can be taken into account in the sentencing process and, secondly, whether the magistrate erred in informing himself of prison conditions in South Australia without reference to the parties and without giving them the opportunity to call evidence or make submissions. The appeal also concerns the magistrate’s methodology in arriving at the sentence.
Background Facts and Charges
The respondent was born on 8 December 1977. His multiple offending, which is the subject of this appeal, can be split into three…

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 Bieg

Details

AGLC: Police v Bieg [2008] SASC 261
Case: [2008] SASC 261
Decision Date: 29 September 2008

CaseChat Overview and Summary

In Police v Bieg, the respondent was appealing against his sentence, which was imposed by a magistrate in the Adelaide Magistrates Court. The appeal centred on the magistrate's decision to suspend the respondent's four-year imprisonment sentence, with a two-year non-parole period, on the condition that he enter into a bond. The appeal raised questions about whether the magistrate correctly considered the prison conditions in South Australia as a relevant factor in the sentencing process and whether the magistrate erred by obtaining information about prison conditions without allowing the parties to make submissions or call evidence on the matter.

The legal issues before the court were twofold. Firstly, the court had to determine if the magistrate's consideration of prison conditions was an appropriate factor in the sentencing process. Secondly, the court had to examine whether the magistrate erred in not giving the parties an opportunity to make submissions or call evidence on matters relevant to the sentence. The appeal also raised a secondary issue concerning the magistrate's methodology in arriving at the sentence.

The court held that the appeal was allowed on the grounds that the magistrate erred in considering prison conditions as a relevant factor in the sentence and in not providing the parties with an opportunity to make submissions or call evidence on matters relevant to the sentence. The court found that prison conditions were only relevant insofar as they might impact peculiarly on a particular prisoner. Furthermore, the court held that the parties should be invited to make submissions and call evidence on any matters which were determinative to the sentence. As a result, the sentence was set aside, and the matter was remitted to another magistrate for resentencing.

Orders

Orders of the court

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Background

Background to the litigation

The appellant argues that the basis of law upon which the magistrate suspended the sentence was incorrect in that he used his perception, that there was overcrowding in the South Australian prison system, as a basis for either suspending the sentence or lowering the non‑parole period. The appeal focuses, first, on whether that is a matter that can be taken into account in the sentencing process and, secondly, whether the magistrate erred in informing himself of prison conditions in South Australia without reference to the parties and without giving them the opportunity to call evidence or make submissions. The appeal also concerns the magistrate’s methodology in arriving at the sentence.Background Facts and Charges The respondent was born on 8 December 1977. His multiple offending, which is the subject of this appeal, can be split into three separate periods. On 30 May 2006, the respondent committed the offences of serious criminal trespass and theft. The respondent entered a residential building at Christies Beach and stole a mobile phone and a cordless phone of the approximate value of $100. On 16 September 2006, the respondent again committed the offences of serious criminal trespass and theft. These offences were committed whilst he was on bail for the offences committed on 30 May 2006. After forcing the rear door, he entered a residential dwelling at Noarlunga and stole jewellery and related items, reflected in one count of theft, and a PlayStation and related items, reflected in a second count of theft. The third episode of offending occurred between 24 and 27 October 2006. On one Information, the respondent was charged with three counts of serious criminal trespass, four counts of theft and one count of common assault committed between 24 and 27 October 2006. During that period, the respondent committed three break‑ins at three different premises in the Noarlunga Downs area. Accompanying each break‑in was an episode of theft. During one of the episodes a person intervened, as a result of which, the respondent assaulted the person with a brick paver. On a second Information, the respondent was charged with serious criminal trespass and theft committed on 27 October 2006. The respondent broke into residential premises and stole a pair of shoes. The respondent was taken into custody on 27 October 2006 in relation to his failure to complete a Community Service Order. He was due for release in respect of this matter on 12 November 2006, but whilst in custody he appeared before the Christies Beach Magistrates Court on 30 October 2006 in relation to the three counts of serious criminal trespass, four counts of theft and one count of common assault committed between 24 and 27 October 2006. He subsequently remained in custody until 18 July 2007, during which period he appeared in the Adelaide Magistrates Court on 22 March 2007 in relation to the count of serious criminal trespass and the two counts of theft committed on 16 September 2006, and on 23 March 2007 in relation to the counts of serious criminal trespass and theft committed on 27 October 2006. He was accepted into the Drug Court Program and released on home detention bail on 18 July 2007. He was terminated from the program on 10 October 2007, at which date his bail conditions were varied. The respondent eventually pleaded guilty to all of the offences, and was sentenced on 23 May 2008.The Sentence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J

Mr Mead, for the respondent, submits that if the appeal is allowed (which it is), I should send the matter back to another magistrate for resentencing. Mr Hinton does not disagree with this course, due to the progressive nature of the respondent’s sentencing and the material that now needs to be gathered as to his personal circumstances from the time of sentence some five months ago until now. This material would be important on resentencing. For this reason, it is unnecessary for me to deal with ground (2), as to the sentencing methodology the magistrate used.Conclusion I allow the appeal. The sentence is set aside and the matter is remitted for resentencing before another magistrate.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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