Police v DANIEL

[2013] SASC 174

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

POLICE v DANIEL

[2013] SASC 174

Judgment of The Honourable Justice Kelly (ex tempore)

5 November 2013

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - GENERALLY

Police appeal against Magistrate’s order to discharge the respondent without penalty – the respondent was charged on information with three counts of aggravated assault committed against police officers known to be acting in the course of their official duty – taking into account the four months already spent in custody on this matter, the Magistrate convicted the respondent without further penalty.

Whether the Magistrate erred in imposing a conviction without penalty.

Held: Appeal allowed – the order of Magistrate to impose a conviction without penalty constituted an error of law – order that the respondent be convicted without penalty set aside – sentence of imprisonment for four months imposed – period of imprisonment to have commenced on the day the respondent was taken into custody.

Criminal Law (Sentencing) Act 1988 (SA) s 15, s 20(3), s 30(2), referred to.

POLICE v DANIEL
[2013] SASC 174

Magistrates Appeal:   Criminal

1. KELLY J (ex tempore):    The appellant, South Australia Police appeals against an order made in the Magistrates Court of South Australia on 23 August 2013 to discharge the respondent without penalty.

2. The respondent was charged on information with three counts of aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).

3. The circumstances of aggravation are that the assaults were committed against police officers known to be acting in the course of their official duty. The respondent pleaded guilty to these offences on the second occasion.

4. Imposing penalty on 23 August 2013 the Magistrate noted that the respondent had been in custody on this matter since his arrest on 24 April 2013. Taking that four months into account the Magistrate convicted the respondent without further penalty.

5. Section 15 of the Criminal Law (Sentencing) Act 1988 (SA) empowers the court to convict without penalty. It provides:

   15—Discharge without penalty

   (1)Where a court finds a person guilty of an offence but finds the offence so trifling that it is inappropriate to impose any penalty, it may—

   (a)     without recording a conviction, dismiss the charge; or

   (b)     upon recording a conviction, discharge the defendant without penalty.

   (2)A court may exercise the powers conferred by this section despite any minimum penalty fixed by a special Act.

6. Thus the power to discharge without penalty is confined to offences considered by the court to be so trifling that it is inappropriate to impose a penalty.

7. The Magistrate did not consider this type of offending trifling. That was a correct finding. On the contrary the Magistrate noted that in line with the sentencing objectives of general and personal deterrence she would normally have imposed a penalty of imprisonment. On this basis the Magistrate did not have any power to convict the respondent without penalty under s 15 of the Criminal Law (Sentencing) Act 1988 (SA).

8. Section 30(2) of the Criminal Law (Sentencing) Act 1988 (SA) empowers a court to direct that the sentence will be taken to have commenced on the day on which the defendant was taken into custody. It provides:

   30—Commencement of sentences and non-parole periods

   …

   (2)If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—

   (a)     make an appropriate reduction in the term of the sentence; or

   (b)     direct that the sentence will be taken to have commenced—

   (i)on the day on which the defendant was taken into custody; or

   (ii)on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.

   …

9. The appellant correctly submitted that the terms of s 30(2) could only be engaged if the Magistrate had subsequently sentenced the respondent to imprisonment. By convicting the respondent without penalty the Magistrate had precluded any exercise of that power to backdate the commencement of the respondent's period of imprisonment.

10. The order of the Magistrate to impose a conviction without penalty did constitute an error of law. As it currently stands the court record does not reflect the gravity of the respondent's offending and it may create the impression in the future on the part of other sentencing courts that the offending was considered trifling.

11. The respondent in these circumstances conceded that the appeal should be allowed but submitted that the respondent should be re-sentenced in the manner proposed by the appellant. In my view that concession was correctly made.

12. Accordingly, I would allow the appeal. I set aside the order of the Magistrate that the respondent be convicted without penalty. I impose a sentence of four months imprisonment and I direct under the provisions of s 30(2) of the Criminal Law (Sentencing) Act 1988 (SA) that the period of imprisonment will be taken to have commenced on the date on which the respondent was taken into custody being 24 April 2013.