Police v Maraldo - [2005] SASC 479

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MARALDO
Judgment of The Honourable Chief Justice Doyle
16 December 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
An appeal by the Police against the decision of a Magistrate to impose a non-parole period (in relation to a head sentence of imprisonment for 12 months) that expired "at the rising of the Court" after which the respondent was released - on appeal - a finding that the Magistrate erred in sentencing to imprisonment for 10 months for three counts of driving whilst disqualified and for imposing a non-parole period of one day - respondent resentenced - application of s 38(2a) of the Criminal Law (Sentencing) Act 1988 - consideration of "special circumstances" for the purposes of s 58(4)(a) of the Criminal Law (Sentencing) Act 1988 - appeal allowed.
Correctional Services Act 1982 (SA) s 66, s 68; Criminal Law (Sentencing) Act 1988 s 18A, s 32(5)(a), s 38(2a), s 58(3), referred to.
R v Buckman (1988) 47 SASR 303; Police v Cadd (1997) 69 SASR 150, considered.

POLICE v MARALDO
[2005] SASC 479
Magistrates Appeal: Criminal

DOYLE CJ: The police have appealed against a sentence imposed by the Magistrates Court. The grounds of appeal are that the Magistrate exceeded his power in making the orders he made, or alternatively that the sentence he imposed is manifestly inadequate.
Ms Maraldo pleaded guilty to three charges of driving a motor vehicle while disqualified from holding or obtaining a driver’s licence. She also pleaded guilty to some less serious traffic offences.
Ms Maraldo also admitted the breach of a bond to be of good behaviour, upon which bond a sentence of two months’ imprisonment had been suspended. That suspended sentence was imposed in respect of an earlier offence of driving while disqualified from holding or obtaining a driver’s licence.
The Magistrate revoked the suspension of the sentence, and directed that the sentence of two months’ imprisonment be served. On the three charges of driving while disqualified from holding or obtaining a driver’s licence the Magistrate imposed a single sentence of imprisonment for ten months. That sentence of imprisonment was directed to be served cumulatively upon the sentence of two months’ imprisonment.
In relation to the combined head sentence of 12 months’ imprisonment, the Magistrate fixed a non-parole period “until the rising of the Court”. Ms Maraldo was therefore released from custody when the court adjourned at lunch time on the day in question.
On appeal the appellant submits that in making the order as to the non-parole period, the Magistrate exceeded his powers. The submission is that only the Parole Board can order the release of a prisoner on parole, and the Magistrate has purported to order the release of Ms Maraldo when he had no power to do so. The point is made that by s 66 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 Maraldo

Details

AGLC: Police v Maraldo [2005] SASC 479
Case: [2005] SASC 479
Decision Date: 16 December 2005

CaseChat Overview and Summary

In Police v Maraldo, the respondent was convicted of three counts of driving while disqualified, and the Magistrate sentenced him to imprisonment for 10 months with a non-parole period of one day. This decision was appealed by the Police, who contended that the Magistrate had erred in the sentencing. The case before the court required consideration of whether the Magistrate's sentencing was appropriate and whether the non-parole period was correctly imposed.

The appeal centred on the Magistrate's imposition of the non-parole period, which was set to expire at the rising of the Court, resulting in the respondent's immediate release. The court was tasked with determining whether the Magistrate had erred in imposing a non-parole period of one day and whether the sentence was appropriate for the offence committed. Additionally, the application of section 38(2a) and section 58(4)(a) of the Criminal Law (Sentencing) Act 1988 was considered, particularly in relation to the concept of "special circumstances."

The court found that the Magistrate had indeed erred in imposing a non-parole period of one day and that the sentence was not appropriate for the offence. The appeal was allowed, and the respondent was resentenced. The court applied section 38(2a) and considered "special circumstances" under section 58(4)(a) of the Criminal Law (Sentencing) Act 1988, ultimately leading to a revised sentence being imposed on the respondent.

The final orders of the court were that the appeal was allowed, the original sentence was set aside, and the respondent was resentenced to imprisonment for a period of 12 months, with a non-parole period of six months.

Orders