Police v PAYNE - [2012] SASC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v PAYNE
[2012] SASC 8
Judgment of The Honourable Justice Peek
25 January 2012
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appellant pleaded guitly to 18 counts of indecent filming - sentenced pursuant to s 18A Sentencing Act to 2 years imprisonment reduced to 18 months for an early guilty plea - 7 month non-parole period fixed - 1 month imprisonment served - appellant bailed pending appeal.
Appeal against sentence - whether Magistrate correctly approached suspension and the 'good reason' test pursuant to s 38 Sentencing Act - whether Magistrate considered all militating factors when considering suspension.
Held: Appeal allowed. Magistrate compared the offending to rape and child pornography and used this comparison in determining whether the sentence could be suspended - Magistrate failed to correctly apply s 38 Sentencing Act.
Upon re-sentencing: new sentence of 17 months imprisonment - 6 month non-parole period with the sentence suspended upon the appellant entering into a good behaviour bond for 3 years.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, 38; Summary Offences Act 1953 (SA) s 23AA; Offenders Probation Act 1913 (SA), referred to.
R v Wacyk (1996) 66 SASR 530; R v Famiglietti [2005] SASC 489, applied.
R v Ford (2008) 100 SASR 94; R v Hunter (1984) 36 SASR 101; R v Leach (2003) 85 SASR 139; Bright v Police (2008) 101 SASR 519, discussed.
R v Wiskich [2000] SASC 64, considered.

POLICE v PAYNE
[2012] SASC 8
Magistrates Appeal

Peek J. This is an appeal against sentence pursuant to s 42 Magistrates Court Act 1991 (SA).
The offending
The appellant pleaded guilty to 18 counts of indecent filming contrary to s 23AA(1) Summary Offences Act 1953 (SA).
The appellant owned a unit adjoining his home. He leased the unit to a mother (Ms A) and daughter (Miss B) who commenced to live there. He secretly installed cameras secreted in smoke detectors in the unit, the cameras being linked to a computer hard drive in his home. The subject matter of the charges was footage later recovered from the hard drive and, in particular, 18 recordings depicting Ms A undressed and Ms A and her boyfriend (Mr C) participating in sexual activity. A camera and associated equipment was also found in the separate bedroom of Miss B but no footage had been taken of her.
The learned Magistrate sentenced the appellant pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (‘CLSA’) to a term of two years imprisonment, reduced by 25 percent for an early guilty plea to 18 months imprisonment. The Magistrate fixed a non-parole period of seven months and declined to suspend the sentence. The appellant served one month’s imprisonment before being granted bail pending the outcome 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 PAYNE

Details

AGLC: Police v PAYNE [2012] SASC 8
Case: [2012] SASC 8
Decision Date: 25 January 2012

CaseChat Overview and Summary

In the matter of Police v Payne, the appellant appealed against a sentence imposed by a magistrate following his guilty plea to 18 counts of indecent filming. The magistrate sentenced the appellant to 2 years imprisonment, reduced to 18 months for an early guilty plea, with a non-parole period of 7 months. The appellant served one month in prison and was bailed pending appeal. The appeal concerned whether the magistrate correctly approached the suspension of the sentence and the 'good reason' test under section 38 of the Sentencing Act. The court had to determine whether the magistrate considered all relevant factors when deciding whether to suspend the sentence.

The court examined the magistrate's decision to suspend the sentence of imprisonment, considering the appellant's age, criminal history, and the impact of serving one month in prison. The court noted that while the service of one month's imprisonment might be of small moment for someone with a criminal record, it was a matter of some weight for a first offender aged 66. The court concluded that the cumulative force of the matters militating in favour of suspension constituted good reason to suspend the sentence of imprisonment. Both counsel for the appellant and respondent regarded the length of the period of imprisonment as appropriate and made no submissions about it. The court did not disagree with it and considered the sentence appropriate in the circumstances of the case.

In light of the above considerations, the court allowed the appeal and set aside the sentence and orders of the magistrate. The court convicted the appellant of counts 1 to 18 and sentenced him to a period of 17 months imprisonment, having regard to the fact that the appellant had served one month. The court fixed a non-parole period of six months and suspended the sentence upon the appellant entering into a bond to be of good behaviour for a period of three years, to be under the supervision of a Community Corrections Officer, and to obey lawful directions, including the undertaking of psychiatric or psychological counselling.

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

Some years ago now, a good deal was written here and in the United Kingdom about the “clanging of the gates” principle, the idea that, for certain offences and certain offenders, a short and sharp prison sentence which brings home the prison experience may be sufficient to positively deter from future offending. Now is not the occasion to enter into such a discussion but the fact is that while the service of one month’s imprisonment by a person with a criminal record involving a number of custodial prison sentences might be of rather small moment, the fact that a first offender of the age of 66 has served a month’s imprisonment (with the resultant permanent status that has now been imposed upon him) is a matter of some weight to be borne in mind when re-sentencing.Conclusion as to suspension of sentence I consider that the cumulative force of the matters militating in favour of suspension, even when considered in the light of the matters militating against suspension, constitute good reason to suspend the sentence of imprisonment. In light of considerations referred to above, I will impose a bond of a longer duration that might otherwise have been the case. Both counsel for the appellant and respondent regarded the length of the period of imprisonment as appropriate and made no submissions about it. I do not disagree with it and in the circumstances of this case it is appropriate that I impose that sentence. To that end, I will impose a new sentence of 17 months imprisonment having regard to the fact that the appellant has served one month. Orders 1. The appeal is allowed and the sentence and orders of the Magistrate are set aside. 2. The appellant is convicted of counts 1 to 18 and sentenced to a period of 17 months imprisonment. I fix a non-parole period of six months. 3. The sentence is suspended upon the appellant entering into a bond to be of good behaviour for a period of three years; to be under the supervision of a Community Corrections Officer; and to obey his or her lawful directions including, but not limited to, the undertaking of psychiatric or psychological counselling.

Ratio Decidendi

Legal Principle Established

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