Police v TALEPOROS

Case [2022] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

POLICE v TALEPOROS

[2022] SASC 92

Judgment of the Honourable Justice McDonald 

26 August 2022

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

Appeal against a sentence imposed by a Magistrate. On 26 November 2021, the respondent was sentenced to three months and seven days imprisonment which was suspended upon him entering a bond to be of good behaviour for a period of 18 months (‘the suspended sentence bond’). On 26 November 2021, the respondent was further sentenced to a bond to be of good behaviour for a period of six months (‘the resentence bond’). The respondent was subsequently charged with three driving offences committed on 8 January 2022 to which he entered guilty pleas. On 7 March 2022, the respondent appeared before a Magistrate to be sentenced in the Mount Gambier Magistrates Court. The prosecution also made an application to estreat the two good behaviour bonds which had been imposed on 26 November 2021.

In sentencing on 7 March 2022, the Magistrate dealt with two of the offences committed on 8 January 2022 together by imposing a fine of $1,000 for both offences. The Magistrate dealt with the third offence of drug driving by ordering a period of licence disqualification of 12 months. In relation to the resentence bond, the Magistrate found the breach proved and, together with the offence of driving whilst disqualified, sentenced the respondent to two months imprisonment. That sentence was backdated to 8 January 2022, when the respondent had been taken into custody. The Magistrate took no further action on the application for enforcement of the suspended sentence bond and the respondent was immediately released from custody.

The appellant appeals against the sentence imposed by the Magistrate on the basis that the Magistrate erred in finding that there were proper grounds to excuse the breach of the suspended sentence bond.

Held, dismissing the appeal:

1.      It was incorrect to categorise the breaching offending as “not of like offending” or of such a different character that the activation of the sentence was a disproportionate consequence.

2.      The level of disparity between the seriousness of the offence for which a bond has been imposed, as compared to the breaching offence, was not such that it led to the conclusion that there are proper grounds to excuse the breach. 

3.      The Magistrate failed to consider the respondent’s history of similar offending.

4.      The Magistrate erred in determining not to revoke the suspended sentence bond.

5.      Despite the error in the approach adopted by the Magistrate, this is an appropriate case in which to exercise the discretion to dismiss the appeal.

Australian Road Rules (SA) r 56(1)(a); Bail Act 1985 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) s 19AC(1)(a), s 19AB(2), s 29(3), s 86A(1); Sentencing Act 2017 (SA)…

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Police v TALEPOROS [2022] SASC 92
Case
[2022] SASC 92
Decision Date

CaseChat Overview and Summary

The appeal against sentence was heard by the Supreme Court of South Australia. The appellant, the Police, challenged the sentencing order imposed on the respondent, Taleporos, who had been found guilty of various criminal offences. The Police submitted that the sentence was manifestly inadequate, particularly considering the gravity of the offences committed by the respondent. Taleporos, on the other hand, argued that the sentence was appropriate and that the appeal should be dismissed.

The legal issues before the court were whether the sentence imposed on the respondent was manifestly inadequate, and if so, whether the appeal should be allowed. The court had to consider the appropriate principles for assessing the adequacy of a sentence and whether the sentence imposed on Taleporos was in line with those principles. The court also had to determine if the delay in bringing the appeal had any impact on the outcome of the case.

The court found that although there was an error in the approach taken by the Magistrate in sentencing Taleporos, it was an appropriate case to exercise the discretion to dismiss the appeal. The court considered the relatively young age of the respondent, his recent release from gaol, and the experienced Magistrate's approach towards his sentencing. The court placed significant weight on the Magistrate's impression of the respondent's prospects for rehabilitation and a positive future. The court concluded that despite the error, the appeal should be dismissed due to the circumstances of the case.

In conclusion, the Supreme Court dismissed the appeal against Taleporos's sentence. The court recognised that while there was an error in the sentencing approach, the respondent's prospects for rehabilitation and a positive future, as seen by the experienced Magistrate, were significant factors in determining the outcome of the appeal.

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 my view, despite the error in the approach adopted by the Magistrate, this is an appropriate case in which to exercise that discretion. The respondent is still a relatively young man having just recently turned 26. He was sentenced on 7 March 2022. It follows that he has been out of gaol and in the community for more than five months. Whilst the delay is not of the duration that it was in many of the authorities, it is still a significant period of time. Of particular importance in this case is the fact that the same Magistrate dealt with the respondent on each occasion that he came before the Court. The Magistrate is very experienced and regularly deals with a variety of offenders from various backgrounds, cultures and walks of life. It is apparent from the approach that the Magistrate took on each occasion that the respondent appeared before her, and the reasons that she has provided, that she saw some hope for rehabilitation and a positive future for the respondent. It is no doubt for that reason that the Magistrate took a merciful approach on each occasion that she sentenced the respondent. I place considerable weight on the impression that she formed of the respondent’s prospects for the future. Conclusion In all of the circumstances, whilst error has been established, I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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