Police v GRAHAM - [2016] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v GRAHAM
[2016] SASC 78
Judgment of The Honourable Justice Peek
9 June 2016
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - IRRELEVANT FACTORS
Appeal against sentence.
The appellant pleaded guilty to a number of offences and was sentenced by a Magistrate to a period of six months and three weeks imprisonment. The Magistrate did not find good reason to suspend any part of the sentence, and made some criticism of the appellant’s behaviour and demeanour whilst she was a participant on an intervention program, finding that she could derive no benefit for her involvement. A technical recording problem resulted in the Court being unable to produce a transcript of the sentencing remarks.
The appellant filed grounds of appeal asserting that the Magistrate erred in not suspending any part of the term of imprisonment; that the fact that sentencing remarks were not recorded frustrated the appellate function of this Court and required this Court to resentence the appellant; and that the Magistrate erred in taking into account the appellant’s performance whilst a participant in an intervention program (in breach of s 10(5)(b), Criminal Law (Sentencing) Act 1988.)
Upon request of the Court immediately after the appeal hearing, the Magistrate provided a report recounting his memory of his sentencing remarks.
Held:
1. The Magistrate did not proceed on the basis that any of the individual offences were too serious to permit suspension of any part of the sentence as asserted by counsel for the appellant. Rather, he considered, after taking into account all of the facts and circumstances, that there was not good reason to suspend the sentence imposed.
2. The Magistrate did not err in law by failing to produce written reasons in the circumstances.
3. There has been no prejudice suffered by the appellant because the Magistrate’s process of reasoning is available to the Court and does enable the Court adequately to address the grounds of appeal.
4. The Magistrate’s criticism in relation to the appellant’s participation in the intervention program was a minor breach of s 10(5)(b), Criminal Law (Sentencing) Act 1988 and requires that the appellant be resentenced.
5. It is appropriate to dismiss the appeal, as the Court would, if resentencing the appellant, impose a greater sentence (and non-parole period) than the head sentence imposed by the Magistrate.
Criminal Law (Sentencing) Act 1988 ss 10(5)(b), 32(5)(a), 38(1), 38(2a); Supreme Court Civil Rules 2006 r 295(1)(e); Supreme Court Civil Supplementary Rules 2014 r 233, referred to.
R v O'Toole [2013] SASCFC 18; H, RJ v Police (2005) 93 SASR 62; Sumner v Police [2007] SASC 295; Weininger v The Queen (2003) 212…

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 GRAHAM

Details

AGLC: Police v GRAHAM [2016] SASC 78
Case: [2016] SASC 78
Decision Date: 9 June 2016

CaseChat Overview and Summary

In the case of Police v Graham, the appellant contested the legality of his sentencing, specifically focusing on the remarks made by the Magistrate regarding the appellant's participation in an intervention program. The appeal was lodged in the Supreme Court of South Australia, addressing the principle of sentencing and the statutory framework governing such matters.

The legal issues at the heart of this appeal involved the interpretation and application of section 10 of the Criminal Law (Sentencing) Act 1988. The primary contention was whether the Magistrate's comments during sentencing constituted an error of law by breaching s 10(5)(b) of the Act, which explicitly states that the performance or lack of progress in an intervention program is not relevant to sentencing. Additionally, the appeal argued that the Magistrate failed to provide adequate reasons for the sentence imposed, which is a fundamental requirement in sentencing proceedings.

The court found that the Magistrate's remarks did indeed breach s 10(5)(b) of the Act. The reasoning was grounded in the clear statutory provision that the performance in an intervention program is irrelevant to sentencing. The court emphasised that such remarks by a judicial officer could be perceived as making the performance in the program relevant to sentencing, which is prohibited by law. Consequently, the court determined that the remarks made constituted a minor breach of the Act and necessitated a re-sentencing of the appellant. This decision underscored the importance of adhering strictly to statutory provisions concerning what factors are deemed relevant in sentencing.

As a result of this determination, the court ordered that the appellant be re-sentenced, ensuring that the Magistrate's remarks did not improperly influence the sentence. The court’s ruling highlighted the necessity for judicial officers to strictly comply with statutory mandates in sentencing, thereby safeguarding the integrity of the sentencing process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

Second, it is said that the criticism in the context of an intervention program breached s 10(5)(b), Criminal Law (Sentencing) Act 1988. Section 10 relevantly provides:10—Sentencing considerations…(4)If a defendant has participated in an intervention program, a court may treat the defendant’s participation in the program, and the defendant’s achievements in the program, as relevant to sentence.(5) However, the fact that a defendant—(a) has not participated in, or has not had the opportunity to participate in, an intervention program; or(b) has performed badly in, or has failed to make satisfactory progress in, such a program,is not relevant to sentence.Consideration of ground 2 of appeal Ground 2 of appeal is rather finely balanced, but I conclude that the Magistrate’s frank report does establish a minor breach of s 10(5)(b), Criminal Law (Sentencing) Act 1988. I so conclude for the following reasons. First, s 10(5)(b) specifically deems the fact that a defendant has performed badly in, or has failed to make satisfactory progress in, an intervention program to be irrelevant to sentencing. If irrelevant, it should not be commented upon by a prosecutor (which did not occur here) and nor should it be commented upon by a judicial officer. Second, for a judicial officer to say to a person about to be sentenced that she “had been a poor participant in the program, and had not taken the program, or indeed these proceedings, seriously” would inevitably be understood as asserting in substance that that person “has performed badly in, or has failed to make satisfactory progress in, such a program.” Third, most (if not all) people present at such a sentencing proceeding would assume that such an observation would indeed be highly “relevant” to sentencing, and for at least two reasons. First, being “a poor participant in the program and not taking the program, or indeed these proceedings, seriously” might well indicate a need for personal deterrence. Second, the judicial officer would not be talking about such things if they were not relevant to the sentencing process being undertaken by him. Fourth, to say to the person being sentenced, as the Magistrate did here, “that she could therefore derive no benefit for her involvement, such as it was, on the Program” does not erase the previous comments. The words “she could therefore derive no benefit” may call to the mind of some trained lawyers the distinction (difficult at the best of times) between refusing leniency on the one hand and not increasing penalty on the other hand.[19] But here, only half of that difficult distinction was uttered, and even that was deemed by the legislation to be irrelevant. [19] See, eg, Weininger v The Queen (2003) 212 CLR 629. I consider that it is necessary to re-sentence because of the above matter. That being so, it is unnecessary to consider further the appellant’s first criticism that counsel was not given the opportunity to make submissions concerning the Magistrate’s observations concerning the appellant’s demeanour. Re-sentencing the appellant