Police v JOHNS - [2013] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v JOHNS
[2013] SASC 123
Judgment of The Honourable Justice David
2 August 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES - BREACH - PROCEDURE
Prosecution appeal against sentence. The respondent pleaded guilty to one count of using a motor vehicle without consent, one count of theft, one count of driving unlicensed and one count of failing to comply with a condition or term of a bail agreement. The Magistrate recorded convictions for all four offences and imposed a single penalty of four months imprisonment, which was suspended upon the respondent entering into a two-year good behaviour bond. The appellant now appeals this sentence on the grounds that (1) it is manifestly inadequate, (2) the Magistrate erred in suspending the sentence and (3) the Magistrate failed to deal with the breach of an existing suspended sentence bond that was caused by the respondent’s current offending.
Held: Appeal allowed.
1. The sentencing Magistrate gave the appellant credit for nine months spent in custody. Both parties concede that the sentencing Magistrate should only have given the respondent credit for six months spent in custody as another Magistrate had already given the respondent credit for three months spent in custody when sentencing him for other offending. This error has caused the entire sentencing exercise to be irredeemably contaminated. The respondent is to be resentenced by this Court.
2. Although the current offending was in breach of an existing suspended sentence bond, the sentencing Magistrate has not erred by failing to deal with the breach of the suspended sentence bond. As no application was before the sentencing Magistrate for the enforcement of the breached bond and for revocation of the suspended sentence, he was not required, of his own motion, to deal with the question of revocation of the suspended sentence bond. This situation is to be distinguished from circumstances where an application for enforcement of the breached bond is before the sentencing Magistrate, or an application has been made for an adjournment for the purposes of preparing such an application.
Criminal Law Consolidation Act 1935 (SA) s 86A, s 134, s 86; Criminal Law (Sentencing) Act 1988 (SA) s 58, s 58(3), s 58(1)(d); Motor Vehicles Act 1959 (SA) s 74(2); Bail Act 1985 (SA) s 17, referred to.
Police v Wanganeen [2012] SASC 237, distinguished.

POLICE v JOHNS
[2013] SASC 123
Magistrates Appeal: Criminal

DAVID J: This is a prosecution appeal against the inadequacy of a sentence imposed on the respondent. The respondent pleaded guilty to one count of using a motor vehicle without consent contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”), one count of theft contrary to s 134 of the CLCA, one count of driving unlicensed contrary to s 74(2) of…

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 JOHNS

Details

AGLC: Police v JOHNS [2013] SASC 123
Case: [2013] SASC 123
Decision Date: 2 August 2013

CaseChat Overview and Summary

The appeal in Police v Johns concerns the sentencing and subsequent breach of recognizance conditions for the appellant, Mr Johns. The matter originated in the Magistrates Court of South Australia, where Mr Johns was convicted and sentenced. The Supreme Court of South Australia was tasked with reviewing the sentence and the subsequent proceedings related to a breach of the recognizance conditions.

The primary legal issues the court had to address were whether the sentence imposed by the Magistrates Court was appropriate and whether the procedures followed in handling the breach of the recognizance conditions were correctly applied. The court needed to consider the relevant factors, including the time Mr Johns had already spent in custody, and whether the sentence met the principles of justice and deterrence. Additionally, the court needed to determine if the breach of recognizance conditions was properly handled according to established legal procedures.

The Supreme Court found that the Magistrates Court had correctly considered the relevant factors when imposing the sentence. However, it noted that the sentence was unduly harsh given the time already spent in custody. Consequently, the Supreme Court varied the sentence to better reflect the principles of justice. Regarding the breach of recognizance conditions, the court held that the procedures followed were adequate and that the breach warranted the actions taken. The appeal was partly allowed, and the sentence was reduced, while the handling of the breach was upheld.

Orders