Police v Miller - [2007] SASC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MILLER
[2007] SASC 8
Judgment of The Honourable Justice David
19 January 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Crown appeal against sentence – the respondent pleaded guilty to three counts of unlawful possession contrary to s 41(1) of the Summary Offences Act 1953 – the respondent had previously pleaded guilty to 27 dishonesty offences – on that previous occasion the magistrate imposed one sentence of four years imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, suspended on a bond – the present guilty pleas breached that bond – the magistrate in the present matter imposed sentence of 200 hours of community service with respect to the guilty pleas – the magistrate refused to estreat the bond because of concerns that the magistrate in the previous matter did not have the power to impose a sentence of four years imprisonment, making the bond invalid – whether the sentence was manifestly inadequate – whether the magistrate erred in refusing to estreat the bond – held, appeal allowed – the limitation imposed by 19(3) of the Criminal Law (Sentencing) Act 1988 does not prevent a magistrate from arriving at a sentence of more than two years imprisonment when sentencing for multiple offences – the magistrate erred in refusing to estreat the bond on this ground – matter remitted to the Magistrates Court.
Criminal Law (Sentencing) Act 1988 s 18A, s 19(3), s 58(3); Summary Offences Act 1953 s 41(1), referred to.
Police v Curtis (2004) 145 A Crim R 587; Ticala v Police (SA) (Unreported, Supreme Court of South Australia, Lander J, 16 July 1997); Rang v Police (SA) (Unreported, Supreme Court of South Australia, Mullighan J, 12 November 1993), applied.
Lee v Police [2006] SASC 197 (Unreported, Layton J, 30 June 2006); Hunt v Police (SA) [2001] SASC 145 (Unreported, Lander J, 9 May 2001), not followed.
R v Osenkowski (1982) 30 SASR 212, discussed.

POLICE v MILLER
[2007] SASC 8
Magistrates Appeal
David J.
Introduction

This is an appeal against sentence.
The respondent pleaded guilty to three counts of unlawful possession contrary to s 41(1) of the Summary Offences Act 1953. All of these offences took place in late October 2005.
Also before the magistrate was an application to estreat a bond into which the respondent had entered on 20 April 2005. On that occasion the respondent had pleaded guilty to 27 offences of dishonesty. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”), the magistrate had imposed one sentence of four years imprisonment, suspending that term of imprisonment upon the respondent entering into the bond for a period of two years. By his pleas of guilty to the matters which are subject of the present appeal, the respondent had admittedly breached the bond, and the police therefore sought to revoke the suspended sentence of imprisonment.
In the present matter the magistrate imposed one penalty, namely that the respondent had to perform 200 hours community service within the next 12 months. The magistrate refused to estreat the bond which would activate the sentence that had previously been suspended. In his sentencing remarks he gave the following reasons for doing so:[1]
You come before the Court as a man with a long history of dishonesty type offences. You appeared in this Court on 20 April 2005 before another Magistrate. You pleaded guilty to a number of dishonesty offences. The Magistrate then dealing with you ordered your imprisonment for four years but suspended that sentence of imprisonment upon you entering into a bond to be of good behaviour for two years. There is an issue as to whether or not the Magistrate was able to sentence you to imprisonment for four years. I am not going to comment upon a sentence imposed by another Magistrate but I indicate that I am not prepared to make any orders in relation to the Application to estreat that suspended sentence of imprisonment bond simply because I have reservations about the validity of that order. My concern relates to whether a sentence of four years imprisonment can be imposed when Section 18(A) of the Criminal Law Sentencing Act is used. My view is if that section is used the Magistrate is limited to imprisoning to a maximum of two years. I will not make any orders at all on the application for estreatment of the suspended sentence of imprisonment bond. There is a suggestion I can use Section 76(b) of the Criminal Law Sentencing Act and correct an error in the order, if there be an error. I am not prepared to do that. It is not my role to sit in judgment of another Magistrate’s order. That is for another place.
[1] Police v Damien Royce Miller (Unreported, Magistrates Court of South Australia, Johansen SM, 18 October 2006), 1.
The appellant now argues that the decision of the original magistrate to impose a suspended sentence of more than two years was correct, and that the magistrate in the present matter erred in not considering the application to estreat the bond. The appellant also argues that even if that were not correct, pursuant to the principles in R v Osenkowski,[2] the sentence imposed was manifestly inadequate. I turn to the question of the validity of the original sentence.
[2] (1982) 30 SASR 212.
The Original Sentence
The respondent argues that the magistrate in the present matter was correct in his decision, and that the original magistrate erred in imposing a term of imprisonment (which was suspended) of more than two years. The question involves a consideration of the inter-relation of s 18A and s 19(3) of the Sentencing Act. Section 18A states:
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
Section 19(3) states:
The Magistrates Court does not have the power to impose -
(a) a sentence of imprisonment that exceeds 2 years; or
(b) a fine that exceeds $150 000.
The appellant argues that the period of two years referred to in s 19(3) only applies to a single sentence for a single offence, and does not apply to a situation where for multiple offences a magistrate has called in aid s 18A of the Sentencing Act.
The respondent argues that s 19(3) stands alone, and irrespective of s 18A, if the term of imprisonment exceeds two years then the magistrate has no power to impose such a sentence. Both counsel referred to a number of authorities of single judges of this Court, some of which are unfortunately contradictory. There appears to be no Full Court authority on the matter.
With the exception of Lee v Police,[3] all of the authorities referred to by counsel were dealt with in Police v Curtis.[4] In that case, pursuant to s 18A of the Sentencing Act, a magistrate had imposed a sentence exceeding two years imprisonment, and Gray J considered the interaction between s 18A and s 19(3) of the Sentencing Act. He said:[5]
[3] [2006] SASC 197 (Unreported, Layton J, 30 June 2006).
[4] (2004) 145 A Crim R 587.
[5] Ibid 593-4.
In Ticala v Police (SA), Lander J took the view that s 19 limits the power of a magistrate to impose a sentence of two years in respect of any one offence. This is reflected in the language of the subsection – it refers to “offence” rather than “offences”. Lander J observed:
In my opinion, s 19 prohibits a Magistrates Court from exercising a power to impose a sentence of imprisonment which exceeds two years in respect of any one offence. If it was otherwise it would mean that if these informations had been heard on separate days before separate Magistrates, then the separate Magistrates could have ordered that the appellant serve a period of imprisonment of two years in relation to each of the informations. Moreover, the second Magistrate would have had the power to make the order for imprisonment in respect of the second information cumulative upon the first.
In my opinion, s 19 must be read and understood as confining the power of a Magistrates Court to impose a sentence of imprisonment of two years or less on each separate offence on any information or complaint.
It was submitted by the Crown that the magistrate made no error when imposing sentences pursuant to s 18A which exceeded two years. It was contended that the magistrate had the power to impose the one penalty being a sentence of imprisonment of more than two years provided the sentence imposed did not exceed the total maximum penalties for each individual charge.
In Rang v SA Police this was accepted by Mullighan J as the correct approach:
The meaning of s 18 is clear. The one sentence which may be imposed for all of the offences cannot exceed “the total of the maximum penalties that could be imposed in respect of each of the offences”. It may be seen that the section makes it plain that a sentence may exceed the maximum sentence for one offence. The meaning of s 19(3) is also clear. The maximum penalty for one offence may not exceed 2 years. There is no warrant for interpreting that section so as to mean that a sentence imposed pursuant to s 18A for multiple offences may not exceed the maximum penalty for one offence permitted by s 19(3) … In imposing a sentence of imprisonment for 4 years, [the magistrate] was not exceeding any limit on the sentencing discretion of a learned Special Magistrate imposed by s 19(3). There is no substance in this ground.
However in R v Hunt Lander J appears to have taken a different view:
The Magistrate was constrained by s 19 of the Criminal Law (Sentencing) Act 1988 (SA) not to impose a sentence of imprisonment that exceeded two years in respect of any offence. In those circumstances the Magistrate could not impose a penalty of more than two years in respect of the illegal use conviction even though s 86A of the Criminal Law Consolidation Act 1935 (SA) provided a penalty of not more than four years.
However, he did treat the offending in relation to counts 1, 3 and 4 as being appropriate to be dealt with as a single sentence under s 18A.
Once the Magistrate decided that it was appropriate to exercise power under s 18A he was not able to sentence the appellant to imprisonment for more than two years, in total, in respect of those three offences.
Section 19(3) limits the magistrate’s power to impose a sentence of more than two years for “an offence”. Section 18A allows one sentence to be imposed for multiple offending. Nothing in the wording of s 18A suggests that a magistrate sentencing pursuant to this section is limited by the terms of s 19(3) to impose the one sentence that does not exceed two years. On the contrary, the context of the legislation suggests that s 18A provides sentencing magistrates with a practical alternative to imposing cumulative or concurrent sentences for separate offences on separate occasions.
The limitation expressed in s 19(3) relates to the maximum penalty to be imposed by a magistrate for any single offence and does not operate to prevent a magistrate from arriving at one sentence for multiple offences of more than two years imprisonment.
The reasoning in Rang should be preferred. By imposing sentences of more then [sic] two years imprisonment for all of the offending of Curtis and Marshall, the magistrate did not exceed any limit placed upon him by the terms of s 19 of the Sentencing Act. [Citations omitted; emphasis in original]
In Lee v Police,[6] a magistrate imposed one penalty for a number of offences pursuant to s 18A of the Sentencing Act, and that sentence was in excess of three years. On appeal against sentence, Layton J found that the respondent could not be sentenced to imprisonment for more than two years because of s 19(3) of the Sentencing Act. However, it is clear from a reading of that decision that the matter of jurisdiction was conceded by the Crown and was not argued. Layton J said:[7]
[6] [2006] SASC 197 (Unreported, Layton J, 30 June 2006).
[7] Ibid [3].
Prior to the hearing the respondent filed a Supplementary Outline of Argument which indicated that:
1. The appeal is conceded on the basis that the learned Magistrate, having decided that it was appropriate to exercise power under section 18A of the Criminal Law (Sentencing) Act, was unable to sentence the appellant to imprisonment for more than two years in total …
2. It would be appropriate in the circumstances for the Court to set aside the sentence imposed by the learned Magistrate and remit the matter to the same Magistrate for re-sentencing.
These submissions were made in the light of the jurisdictional restriction imposed by s 19 of the Sentencing Act, which provides that:
…
However, despite these concessions, the appellant wished to argue the appeal on the basis that he opposed an order that the matter be remitted, and instead contended that the proper course was for this Court to re-sentence.
None of the authorities mentioned above were cited to her Honour, and because of the concession the matter was not considered.
In my view, the decisions in Curtis,[8] Ticala[9] and Rang[10] are to be preferred to the decisions of Hunt[11] and Lee,[12] bearing in mind of course that it was not argued in Lee. In my view, the limitation imposed upon the magistrate by s 19(3) of the Sentencing Act applies only when sentencing for one offence, and does not prevent a magistrate when sentencing for multiple offences from arriving at one sentence of more than two years imprisonment pursuant to s 18A of the Sentencing Act.
[8] Police v Curtis (2004) 145 A Crim R 587.
[9] Ticala v Police (SA) (Unreported, Supreme Court of South Australia, Lander J, 16 July 1997).
[10] Rang v Police (SA) (Unreported, Supreme Court of South Australia, Mullighan J, 12 November 1993).
[11] Hunt v Police (SA) [2001] SASC 145 (Unreported, Lander J, 9 May 2001).
[12] Lee v Police [2006] SASC 197 (Unreported, Layton J, 30 June 2006).
I therefore find that the magistrate erred in refusing to estreat the bond imposed by the original magistrate because of his “reservations about the validity of that order”.
I raised with counsel during argument the desirability of remitting the matter back to the sentencing magistrate for further submissions if I allowed the appeal. I think that course is preferable, because even though I have found that the magistrate should consider the question of estreatment of the bond, counsel for the respondent may nevertheless wish to have the opportunity to put more material before him to support any application pursuant to s 58(3) of the Sentencing Act not to estreat the bond.
Conclusion
The appeal is allowed, the sentence is set aside and the matter is to be remitted back before the sentencing magistrate for further submissions and re‑sentencing.