Police v Gray

Case [2012] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v GRAY

[2012] SASC 18

Judgment of The Honourable Justice Blue

10 February 2012

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT - ORDERS

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE

Respondent convicted by Magistrate of two counts of aggravated assault, two counts of breaching a domestic violence restraining order, one count of hindering police and one count of breaching bail - respondent thereby breached 5 week suspended sentence bond previously imposed - suspension revoked in respect of 5 week sentence and respondent sentenced to 12 months for new offences with a one month non-parole period - respondent had been in custody over 4 months before sentencing - after 9 months in custody Magistrate set aside the sentences pursuant to s 9A of the Sentencing Act because the Parole Board decided not to release respondent on parole - Magistrate substituted for the sentences previously imposed an order that respondent be released on a good behaviour bond for 12 months.

Police appeal against later orders - whether Magistrate had power under s 9A Sentencing Act or s 76A Summary Procedure Act to set aside and substitute different sentence - if appeal allowed - whether Magistrate's orders revive - whether Magistrate overlooked backdating or reducing original head sentence for time served in custody on remand - whether such adjustment could be made on a Police appeal under s 42(5) Magistrates Court Act or only by cross-appeal - whether term of imprisonment runs while defendant not in custody - whether adjustment should be made - whether in all the circumstances defendant should now return to prison or be subject to a bond.

Held: Appeal allowed - Magistrate had no power to set aside the sentence pursuant to s 9A Sentencing Act or s 76A Summary Procedure Act - Magistrate's setting aside and substituted sentencing order quashed - original orders revived - Supreme Court has the power to vary Magistrate's original sentence - Magistrate overlooked time spent in custody when fixing head sentence - original orders varied to provide that head sentences commence from when respondent taken into custody - sentence continued to run notwithstanding respondent's release from custody following the later orders of Magistrate - respondent to enter into a good behaviour bond for 14 months

Criminal Law (Sentencing) Act 1988 (SA) s 9A; Summary Procedure Act 1921 (SA) s 76A, s 76A(3); Magistrates Court Act 1991 s 42, s 42(5); Correctional Services Act 1982 (SA) s 66, s 67, referred to.
Police v Churchill (1998) 71 SASR 461; Police v Clayton-Smith (2010) 107 SASR 261, applied.
Andrews v Parole Board of South Australia (2008) 257 LSJS 280; Police v Scheving [2011] SASCFC 155; R v Garrett (1978) SASR 308; R v Jamieson (1988) 50 SASR 130; R v McHugh (1985) 1 NSWLR 588; R v…

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Details
AGLC
Police v Gray [2012] SASC 18
Case
[2012] SASC 18
Decision Date

CaseChat Overview and Summary

In the matter of Police v Gray, the police sought to appeal a decision of a Magistrate who had set aside the sentences imposed on the respondent and substituted a bond in lieu of imprisonment. The respondent was convicted by the Magistrate of various offences, including aggravated assault, breach of a domestic violence restraining order, and hindering police. The Magistrate revoked the suspension of a previously imposed sentence and sentenced the respondent to 12 months imprisonment with a one-month non-parole period for the new offences. However, after nine months in custody, the Magistrate set aside the sentences under section 9A of the Sentencing Act because the Parole Board had decided not to release the respondent on parole, and substituted an order for the respondent to be released on a good behaviour bond for 12 months.

The legal issues before the court were whether the Magistrate had the power to set aside and substitute the sentences, and if so, whether the Police could appeal against the Magistrate's orders. The court found that the Magistrate had no power to set aside the sentences under section 9A of the Sentencing Act or section 76A of the Summary Procedure Act, and that the Magistrate's orders were quashed. The court held that the original orders revived, and that the Supreme Court had the power to vary the Magistrate's original sentence. The court also found that the Magistrate overlooked the time spent in custody when fixing the head sentence, and that the original orders were varied to provide that the head sentences commence from when the respondent was taken into custody.

The court concluded that the appeal by the Police should be allowed, and that the orders made by the Magistrate on 10 October 2011 were set aside in their entirety. The court varied the orders made on 23 May 2011 to provide that the sentence of 12 months imprisonment commence on 11 January 2011, and that the sentence of five weeks imprisonment commence on the expiration of the sentence of 12 months imprisonment. The court also fixed a non-parole period in respect of the sentences of imprisonment of five months and 12 days commencing on 11 January 2011, and ordered that the respondent enter into a good behaviour bond for 14 months. The court found that the conviction of the respondent without further penalty for hindering police remained unchanged.

Orders

Orders of the court

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Background

Background to the litigation

The defendant opposes the appeal and in the alternative seeks an order pursuant to s 42 of the Magistrates Court Act 1991 (SA) (“the Magistrates Court Act”) (or in the further alternative cross-appeals seeking an order) varying the orders made by the Magistrate on 23 May 2011 so as either to backdate the commencement of the sentences to 11 January 2011 or to reduce them on account of time spent in custody on remand in respect of the offences between 11 January and 23 May 2011.Background facts On 31 December 2008, the defendant committed two assaults on his ex-wife and one assault upon her friend. On 20 January 2009, a Magistrate made a five year domestic violence restraining order against the defendant in respect of contact with his ex-wife. On 16 November 2009, the defendant was sentenced by a Magistrate for the December 2008 offences to five weeks imprisonment, which was suspended upon his entering into a bond to be of good behaviour for 18 months. On 10 January 2011, after the defendant and his ex-wife had reconciled, an argument took place. The defendant assaulted his ex-wife by grabbing both of her hands. The following day, (while on bail on charges arising from the incident the previous day) a further argument took place and the defendant again assaulted his ex-wife by grabbing both of her hands. He then fled when the police arrived. On 11 January 2011, the defendant was arrested and remanded in custody until he was sentenced on 23 May 2011. He thereby spent four months and 12 days in custody on remand in respect of the offences. On 23 May 2011, the Magistrate sentenced the defendant pursuant to s 18A of the Sentencing Act in respect of the two counts of assault, the two counts of failure to comply with the domestic violence order and one count of breaching bail to 12 months imprisonment (cumulative on the five weeks imprisonment in respect of which he revoked the suspension) with a non-parole period of one month. He convicted the defendant on the count of hindering police without further penalty. Some time after the expiration of the one month period, the defendant applied for parole. On 5 September 2011, the Parole Board refused to grant parole on the basis that the defendant had no insight into his offending behaviour. It appears that he had not undertaken any programs addressing domestic violence while in prison. On 10 October 2011, the Magistrate called the matter on of his own volition. He made an order pursuant to s 9A of the Sentencing Act recalling the sentences which he had imposed on 23 May 2011 and substituting an order that the defendant be released on a bond to be of good behaviour for 12 months, to be under the supervision of an officer of the Department of Correctional Services and to obey his or her lawful directions (including attendance at domestic violence programs, psychological or psychiatric assessment and treatment). The Magistrate said that his reason for making the set aside order was that the intent of his original orders had been frustrated by the Parole Board substituting its own decision for the intent of the Court. Power of Magistrates Court to set aside previous orders

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BLUE J
As I have concluded that it is appropriate to vary the sentence originally imposed by the Magistrate in a manner which results in the release of the defendant on a bond, I consider that it would not be appropriate to decline to set aside the orders of 10 October 2011. An order wrongly made should not be permitted to stand unless (perhaps) that were the only manner in which the interests of justice could be achieved.Conclusion In the event that the defendant is prepared to enter into a bond, I would make the following orders:1.I allow the appeal by the Police and set aside in their entirety the orders made by the Magistrate on 10 October 2011 to the intent that (subject to order 2) the orders made on 23 May 2011 thereby revive.2.I vary the orders made on 23 May 2011 as follows:(a) the sentence of 12 months imprisonment commence on 11 January 2011;(b) the sentence of five weeks imprisonment commence on the expiration of the sentence of 12 months imprisonment;(c) there be a non-parole period fixed in respect of the sentences of imprisonment of five months and 12 days commencing on 11 January 2011;(d) the two counts of failing to comply with the domestic violence restraining orders be severed from the sentence pursuant to s 18A of the Sentencing Act and in respect of those two counts, the defendant be released upon entering a bond in the sum of $200 to be of good behaviour for a period of 14 months commencing today, to be under the supervision of a Community Corrections Officer of the Department of Correctional Services and to obey the lawful directions of such officer including directions to attend programs deemed appropriate from time to time dealing with domestic violence and as to psychological or psychiatric assessment and to undertake any treatment deemed appropriate from time to time and to report to the Department of Correctional Services within two working days;(e) the conviction of the defendant without further penalty for hindering police remain unchanged.

Ratio Decidendi

Legal Principle Established

Established by: BLUE J

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