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…

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 Miller

Details

AGLC: Police v Miller [2007] SASC 8
Case: [2007] SASC 8
Decision Date: 19 January 2007

CaseChat Overview and Summary

In the case of Police v Miller, the Crown appealed against the sentence imposed by a magistrate on the respondent, who had pleaded guilty to three counts of unlawful possession contrary to section 41(1) of the Summary Offences Act 1953. The respondent had previously pleaded guilty to 27 dishonesty offences and, in that case, the magistrate imposed a sentence of four years imprisonment, suspended on a bond. The present guilty pleas breached that bond. In this matter, the magistrate imposed a sentence of 200 hours of community service and refused to estreat the bond due to concerns about the validity of the previous sentence. The Crown appealed on the grounds that the sentence was manifestly inadequate and that the magistrate erred in refusing to estreat the bond.

The court had to decide whether the sentence was manifestly inadequate and whether the magistrate erred in refusing to estreat the bond. The court considered the statutory framework governing the magistrate's sentencing powers and the validity of the previous bond. The court found that the limitation imposed by section 19(3) of the Criminal Law (Sentencing) Act 1988 did not prevent a magistrate from imposing a sentence of more than two years imprisonment when sentencing for multiple offences. The court also found that the magistrate erred in refusing to estreat the bond on the ground that the previous sentence was invalid. The court concluded that the appeal should be allowed, the sentence set aside, and the matter remitted back to the sentencing magistrate for further submissions and re-sentencing.

The appeal was allowed, and the sentence was set aside. The matter was remitted back to the sentencing magistrate for further submissions and re-sentencing. The court suggested that it would be preferable for the matter to be remitted back to the sentencing magistrate to allow for the possibility of additional submissions and to ensure that the respondent had the opportunity to present any material supporting an application not to estreat the bond under section 58(3) of the Sentencing Act. The court concluded that even though it had found that the magistrate should consider the question of estreatment of the bond, the respondent's counsel may wish to have the opportunity to put more material before the magistrate to support any such application.

The court's decision highlights the importance of ensuring that the sentencing magistrate considers all relevant factors in determining an appropriate sentence and that any errors in the original sentencing process are rectified through re-sentencing. The court's decision also underscores the need for careful consideration of the validity of any previous bonds or sentences that may be impacted by subsequent guilty pleas and the potential consequences of those bonds or sentences on the imposition of new sentences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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