Police v Smith - [2004] SASC 38

POLICE v DANIEL GRAHAM SMITH
[2004] SASC 38
Magistrates Appeal: Criminal (ex tempore)

BESANKO J: This is an appeal by the Police against a sentence imposed by a Magistrate on 4 December 2003.
The respondent pleaded guilty to the following offences:
1. On 14 June 2003 at Nailsworth in the State of South Australia, the respondent was present on premises at 4 Emilie Street without lawful excuse, contrary to s 17 of the Summary Offences Act 1953 (count 1).
2. On 14 June 2003 at Nailsworth in the said State, the respondent without reasonable excuse failed to comply with the term or condition of a bail agreement entered into by him, contrary to s 17 of the Bail Act 1985 (count 2).
3. On 14 June 2003 at Prospect in the said State, the respondent stole a Nokia mobile telephone to the value of approximately $300 the property of Helen Marie Page, contrary to s 131 of the Criminal Law Consolidation Act 1935 (count 4).
4. On 14 June 2003 at Prospect in the said State, the respondent had in his possession personal property, namely a Nokia 6210 mobile telephone, which either at the time of such possession or at a subsequent time before the making of this complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means, contrary to s 41(1) of the Summary Offences Act 1953 (count 5).
5.On 12 June 2003 at Elizabeth North and other places in the said State, the respondent without reasonable excuse failed to comply with a term or condition of a bail agreement entered into by him, contrary to s 17 of the Bail Act 1985 (count 6).
6. On 5 June 2003 at Elizabeth North and other places in the said State, the respondent without reasonable excuse failed to comply with a term or condition of a bail agreement entered into by him, contrary to s 17 of the Bail Act 1985 (count 7).
Two counts in the information, counts 3 and 8, were withdrawn.
The Magistrate imposed one sentence of a term of imprisonment of three months for all of the above offences (s 18A Criminal Law (Sentencing) Act 1988 (“CLSA”)) and declined to extend an existing non-parole period of nine months.
Early in 2003, the respondent was serving a term of imprisonment for other offences. On 19 February 2003, he was released on parole. The respondent committed further offences on 1 April and 9 June 2003 respectively. He was sentenced with respect to those offences on 26 June 2003 to a term of imprisonment of two years and six months. His parole was cancelled pursuant to s 75 of the Correctional Services Act 1982. The respondent was ordered to serve the sentence imposed on 26 June 2003 cumulatively upon the unexpired balance of his parole of one year, four months and 19 days. That resulted in a total sentence of a term of imprisonment of three years, 10 months…

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 Smith

Details

AGLC: Police v Smith [2004] SASC 38
Case: [2004] SASC 38
Decision Date: 11 February 2004

CaseChat Overview and Summary

Police v Smith is a case that came before the court regarding a dispute concerning the adequacy of a sentence imposed on the defendant, Smith. The police had appealed against the leniency of the sentence, which was three months imprisonment, arguing that it was manifestly inadequate given the circumstances of the case. Smith had been found guilty of various offences, and the police sought a more severe penalty. The case was heard and decided by the court, which had to determine whether the original sentence was appropriate and whether the appeal should be upheld.

The primary legal issue before the court was to assess whether the sentence of three months imprisonment was indeed manifestly inadequate. This involved evaluating the nature and gravity of the offences committed by Smith, the mitigating and aggravating factors presented, and the principles of sentencing that should be applied in such circumstances. The court had to consider whether the original sentence was disproportionate to the seriousness of the crimes and whether a different penalty should be imposed.

The court, after considering the arguments and evidence presented, found that the sentence of three months imprisonment was not manifestly inadequate. The court acknowledged the factors that had been taken into account by the magistrate in imposing the original sentence but ultimately concluded that it was appropriate given the context. The appeal was dismissed, and the original sentence was upheld. The court's decision was based on a comprehensive analysis of the case, ensuring that all relevant considerations were taken into account.

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

In all the circumstances, I am not satisfied that the sentence of three months imprisonment was manifestly inadequate.Conclusions The appeal must be allowed and the sentence set aside. I impose a sentence of three months imprisonment, thereby enlarging the head sentence to four years, four months and 19 days. Having regard to the matters put to the Magistrate and to me including the 10 day period the appellant spent in custody in June 2003, I extend the non-parole period by one month to a period of 10 months. I make orders accordingly.

Ratio Decidendi

Legal Principle Established

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