SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ELMES
[2016] SASC 188
Judgment of The Honourable Justice Peek
14 December 2016
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - FRESH EVIDENCE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
Appeal against sentence.
On 20 July 2016, the appellant pleaded guilty to two counts of basic assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935. The Magistrate sentenced her to seven months imprisonment and did not backdate it to account for time spent in custody.
Prior to being remanded in custody in relation to the subject offences on 8 October 2015, the appellant had been remanded in custody in relation to other offences on 28 August 2015. She remained in custody on those charges until a nolle prosequi was entered in relation to them on 7 December 2016, two days before this appeal was heard.
The appellant’s grounds of appeal contended that the sentence was manifestly excessive; and that the Magistrate erred in not backdating the present sentence.
Held (allowing the appeal):
1. The Magistrate acted within her discretion in imposing the seven month period of imprisonment, and it has not been established that the sentence was manifestly excessive.
2. The fresh evidence of the entry of the nolle prosequi in relation to the other charges should be admitted pursuant to s 42 of the Magistrates Court Act 1991 as it demonstrates a miscarriage of justice.
3. The sentence imposed by the Magistrate is varied such that it is to be taken to have commenced on 20 March 2016, backdated by four months.
Criminal Law Consolidation Act 1935 ss 10, 20, 30; Magistrates Court Act 1991 s 42, referred to.
The Queen v Morse (1979) 23 SASR 98; R v Arts & Briggs [1998] 2 VR 261; Bonney v SA Police (1996) 185 LSJS 185; Tong v Police [1998] SASC 6813; R v Colson (1999) 73 SASR 407; R v Hughey [2007] SASC 452; R v Al-Zuain (2009) 103 SASR 567, discussed.
House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Heaney (Unreported, Supreme Court (Vic), Court of Appeal, 27 March 1996, Winneke P, Brooking JA and Hampel AJA); R v Renzella [1997] 2 VR 88; PNJ v The Queen (2009) 83 ALJR 34; R v Berry (2007) 17 VR 153; R v Sladic (2005) 92 SASR 36, considered.
POLICE v ELMES
[2016] SASC 188Magistrates Appeal
PEEK J.
This is an appeal against a sentence of seven months imprisonment imposed by the Magistrate on 20 July 2016 in relation to two offences of assault (“the subject offences”). These offences were committed sequentially upon the two victims, a…
Continue reading Police v Elmes
Sign in free to access the full text
- AGLC
- Police v Elmes [2016] SASC 188
- Case
- [2016] SASC 188
- Decision Date
CaseChat Overview and Summary
The key legal issues before the court were whether the Magistrate erred in the sentencing process by not considering the time the appellant had already spent in custody, and if the sentence imposed was manifestly excessive. The appellant argued that the sentence was too harsh given her personal circumstances and the short time elapsed since her previous release. The Police contended that the sentence was appropriate given the appellant's persistent violent behaviour.
The court held that the Magistrate did not err in imposing the sentence, as the penalty was within the range open to them. The court emphasised that an appellate court should not interfere with a discretionary sentencing decision unless there is clear evidence of an error in principle, or that the sentence was unreasonable. The appeal was rejected, as the appellant had not demonstrated that the sentence was manifestly excessive or that the Magistrate had acted on an incorrect principle. The court also noted that the appellant had not succeeded in avoiding violent behaviour despite previous sentences, underscoring the need for personal deterrence.
The final orders of the court were that the appeal be dismissed, and the original sentence imposed by the Magistrate be upheld. The court did not find merit in the arguments presented by the appellant regarding the commencement date of the sentence or the overall severity of the penalty.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: PEEK J
I note that on 20 December 2012 the appellant was sentenced in the District Court for offences including aggravated assault to a head sentence of 31 months imprisonment with a non-parole period of 12 months, both commencing on 12 September 2012. The precise dates of her release on parole, and completion of that parole, are not before me but on an assumption highly favourable to the appellant that she had completed her period of parole, such completion must have been only a short period before 4 July 2014 when she committed the present assaults. Consideration The Magistrate had regard to the personal circumstances of the appellant, including that she was homeless, had a drug problem, and had limited support. However, none of the appellant’s previous sentences had succeeded in deterring her from violent behaviour. The Magistrate correctly had regard to the appellant’s criminal history in coming to the view that leniency was not called for and that there was a need for personal deterrence in this case. It is well established that an appellate court should not interfere with a discretionary finding of a Magistrate unless the appellant establishes that the Magistrate acted on some wrong sentencing principle, took into account an irrelevant matter, failed to have regard to a relevant matter, or that the sentence is so unreasonable that it cannot be regarded as a proper exercise of the sentencing discretion.[3] It is not enough that the appeal court, had it been in the position of the Magistrate, would have imposed a different sentence.[3] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); Markarian v The Queen (2005) 228 CLR 357, 370. I consider that it has not been established that the notional head sentence of ten months imprisonment for the subject offending was manifestly excessive. The penalty was within the range open to the learned Magistrate. Ground 1 of appeal is rejected. Grounds 2 and 3 of appeal were formally withdrawn at the hearing of the appeal.Ground 4 of appeal: Backdating of sentence Ground 4 of appeal (as amended) appears as follows:The learned sentencing Magistrate erred in commencing the sentence from the day of the sentence (sic sentencing) in circumstances where the appellant had been in custody on the matter at bar since 8 October 2015. Section 30 of the Criminal Law (Sentencing) Act 1988 (“the Act”) provides as follows:30—Commencement of sentences and non-parole periods(1) Where a court imposes a sentence of imprisonment and does not suspend the sentence under Part 5, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.(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.