Police v Dolan - [2010] SASC 341

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v DOLAN
[2010] SASC 341
Reasons for Decision of The Honourable Justice Gray
9 December 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - OTHER MATTERS
Police appeal against sentence - defendant pleaded guilty before a Magistrate to the offences of common assault, trespass and breach of bail - convicted on each count and sentenced pursuant to section 18A of Criminal Law (Sentencing) Act 1988 (SA), being released without further penalty on entry into a good behaviour bond for 18 months - Police on appeal complained that the circumstances of the offence of assault were so serious as to warrant a term of imprisonment - where assault committed in circumstances of domestic violence against a young pregnant woman - whether Magistrate proceeded on an error of sentencing principle - whether sentence manifestly inadequate.
Held: Appeal allowed - the Magistrate failed to have sufficient regard to the fact that the conduct the subject of the assault charge was an act of domestic violence to a young pregnant woman - the penalty imposed by the Magistrate was manifestly inadequate - on resentencing, defendant sentenced to a term of imprisonment of four months, suspended on the defendant entering into a bond for a term of three years to be supervised for a period of 18 months.
Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 38; Criminal Law Consolidation Act 1935 (SA) s 20; Summary Offences Act 1953 (SA) s 17, referred to.
R v Wilkinson (2008) 101 SASR 21; R v Banens (Unreported, Supreme Court of South Australia, King CJ, 18 November 1987); R v Lennon (2003) 86 SASR 295; Malvaso v The Queen (1989) 168 CLR 227; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Cowe [2010] SASCFC 46; R v Ironside (2009) 104 SASR 54, considered.

POLICE v DOLAN
[2010] SASC 341
Magistrates Appeal
GRAY J.

This is a police appeal against sentence.
On 7 September 2010, Gary Alan Dolan pleaded guilty before a Magistrate to the offences of common assault,[1] trespass[2] and breach of bail.[3] He was a first offender. He was convicted on each count and sentenced to the one penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). He was released on his entry into an 18 month supervised good behaviour bond requiring him to appear before the Court for sentence if he breached a condition of that bond. It was a further condition of the bond that he obey the lawful directions of his supervising Correctional Services Officer, in particular with respect to attending programs in…

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 Dolan

Details

AGLC: Police v Dolan [2010] SASC 341
Case: [2010] SASC 341
Decision Date: 9 December 2010

CaseChat Overview and Summary

The case of Police v Dolan involved an appeal by the Police against the sentence imposed on the defendant by a Magistrate. The defendant had pleaded guilty to charges of common assault, trespass, and breach of bail. The Magistrate convicted the defendant on all counts and sentenced them under section 18A of the Criminal Law (Sentencing) Act 1988 (SA). The sentence imposed was the defendant being released without further penalty on entering into a good behaviour bond for 18 months. The Police argued that the circumstances of the assault, which occurred in the context of domestic violence against a young pregnant woman, warranted a term of imprisonment, and thus, the sentence was manifestly inadequate.

The primary legal issue for the court was whether the Magistrate had proceeded on an incorrect principle of sentencing and whether the penalty imposed was manifestly inadequate. The court needed to assess whether the Magistrate had failed to adequately consider the gravity of the assault, which was an act of domestic violence against a vulnerable victim. The court also had to determine if the sentence imposed was manifestly inadequate given the circumstances of the offence.

In reaching its decision, the court held that the Magistrate had indeed failed to sufficiently consider the serious nature of the assault, particularly due to the context of domestic violence against a young pregnant woman. The court found that the penalty imposed by the Magistrate was manifestly inadequate. Consequently, the appeal was allowed, and the defendant was resentenced to a term of imprisonment of four months, which was suspended upon the defendant entering into a bond for a term of three years, with supervision for a period of 18 months.

Orders