Police v Gray

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.