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Police v Van Boxtel

Police v Van Boxtel

Case [2013] SASC 82 3 June 2013

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SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v VAN BOXTEL
[2013] SASC 82
Judgment of The Honourable Justice White
3 June 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
The respondent was sentenced in the Magistrates Court for 31 offences - in addition, the Magistrate had to deal with applications for the enforcement of two suspended sentence bonds - the Magistrate imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) - the prosecution appealed.
Held (allowing the appeal):
(1) It is not open to the Magistrate to impose a single sentence under s 18A of the CLSA which incorporated the two suspended sentence bonds.
(2) The Magistrate erred in law in failing to review and extend the existing non-parole period.
(3) An effective sentence of three months for the 31 offences before the Magistrate was so low as to shake public confidence in the administration of justice.
(4) Remission to Magistrates Court for the respondent to be re-sentenced.
See Related Files:
AMC-11-12839; MCMUB-12-1581; MCMUB-12-1580; MCPAD-12-3356; AMC-12-11639; MCHHL-12-2512; AMC-11-11357; MCHHL-11-6628; MCCHB-11-1994; MCCHB-11-1645; MCCHB-11-1655; MCHHL-11-3707; MCHHL-11-1130; MCHHL-11-5530; AMC-10-7870; AMC-10-4318; MCHHL-09-3986; AMC-07-10903; AMC-07-13285; AMC-07-14524
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 32, s 58; Criminal Law Consolidation Act 1935 (SA) s 20, s 85, s 86A, s 134, s 139; Road Traffic Act 1961 (SA) s 38; Bail Act 1985 (SA) s 17; Motor Vehicle Act 1959 (SA) s 91; Summary Offences Act 1953 (SA) s 17, referred to.
Everett v The Queen (1994) 181 CLR 295; R v Nemer [2003] SASC 375; (2003) 87 SASR 168; Heal v Police [1999] SASC 374; (1999) 75 SASR 331; R v Jeffries [2004] SASC 188; R v Leathley [2013] SASCFC 42; Hermel v Police [2000] SASC 34; (2000) 76 SASR 336; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; R v Waugh [2005] SASC 470; (2005) 93 SASR 274; R v Bagnato [2011] SASCFC 161; (2011) 112 SASR 39; Attorney-General v Tichy (1982) 30 SASR 84; R v Drumgoon (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, 13 December 1995, Judgment No S5382); Police v Dyke (Unreported, Supreme Court of South Australia, 1 August 1997, Judgment No S6290); R v Williams [2013] SASCFC 26; R v Cave [2012] SASCFC 42; House v The King (1936) 55 CLR 499; R v Shepperbottom [2001] SASC 31; (2001) 121 A Crim R 69; Hocking v Police [2009] SASC 268; (2009)…

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 Van Boxtel

Details

AGLC: Police v Van Boxtel [2013] SASC 82
Case: [2013] SASC 82
Decision Date: 3 June 2013

CaseChat Overview and Summary

In Police v Van Boxtel, the prosecution appealed against a sentence imposed by the Magistrates Court on the respondent for 31 offences, as well as applications for the enforcement of two suspended sentence bonds. The appeal focused on the propriety of the Magistrate's imposition of a single sentence under section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and the adequacy of the sentence imposed. The court had to consider whether the appeal was justified and if the sentence was manifestly inadequate or otherwise erroneous.

The appeal raised several legal issues, including whether the Magistrate correctly applied the law in imposing a single sentence under section 18A of the CLSA, the proper approach to extending the non-parole period, and whether the sentence imposed was manifestly inadequate or otherwise erroneous. The appeal also questioned whether the Magistrate's sentencing was influenced by factors not available to the appellate court, such as files and letters not provided to the court.

The court found that the Magistrate erred in imposing a single sentence under section 18A of the CLSA that incorporated the two suspended sentence bonds. Additionally, the court held that the Magistrate failed to review and extend the existing non-parole period, which constituted an error of law. The court also found that the effective sentence of three months for the 31 offences was manifestly inadequate, undermining public confidence in the administration of justice. Given these findings, the court allowed the appeal and set aside the orders made by the Magistrate. The court remitted the matter to the Magistrates Court for the respondent to be re-sentenced by another Magistrate, considering the factors and context not available to the appellate court.

The final orders were that the appeal was allowed, the orders made by the Magistrate were set aside, and the matter was remitted to the Magistrates Court for re-sentencing. The court also noted that the Magistrate's sentencing was influenced by the Drug Court context and that remission would allow for addressing uncertainties related to the enforcement of the 2007 bond.

Orders

Orders of the court

Held (allowing the appeal):

(1) It is not open to the Magistrate to impose a single sentence under s 18A of the CLSA which incorporated the two suspended sentence bonds.

(2) The Magistrate erred in law in failing to review and extend the existing non-parole period.

(3) An effective sentence of three months for the 31 offences before the Magistrate was so low as to shake public confidence in the administration of justice.

(4) Remission to Magistrates Court for the respondent to be re-sentenced.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

Counsel also referred to some disparities in the notional sentences identified by the Magistrate. It is not necessary to address the detail of this submission. It is sufficient to note that there does seem to be some basis for counsel’s submission in relation to the two notional sentences of three months imprisonment for the offences committed on 25 February 2011; in the two notional sentences of imprisonment for one week for the breaches of bail committed on 16 and 23 March 2011; and, possibly, in relation to some of the offences of theft committed between October 2011 and June 2012, both dates inclusive.Conclusion The result, in my opinion, is that the Magistrate’s sentence is affected by two significant errors of law. In addition, the effective sentence for the 31 offences for which the Magistrate was sentencing is manifestly inadequate. There are other errors, as identified. Those circumstances mean that the appeal should be allowed and the respondent re-sentenced in accordance with law. Accordingly, this is one of the relatively exceptional cases in which a prosecution appeal should be allowed. There remains a question as to whether this Court should re-sentence the respondent or whether the matter should be remitted to the Magistrates Court for that purpose. I favour the latter course. First, this Court does not have all the materials available to the Magistrate as the Magistrates Court has not been able to provide six of its files nor a letter written by the respondent to the Magistrate. It is also evident that the Magistrate’s approach to sentencing of the respondent was influenced, to an extent, by the fact that he was sitting in the Drug Court and that, prior to sentencing, the respondent had been subject to supervision by that Court. It is preferable for the respondent to be re‑sentenced in that same context. Remission to the Magistrates Court would also allow the uncertainty arising from the previous action taken for the enforcement of the 2007 bond, to which I referred earlier in these reasons, to be addressed. Accordingly, I allow the appeal and set aside the orders made by the Magistrate on all the files which were before him, including on the three applications for enforcement of the bonds. I remit the matter to the Magistrates Court so that the respondent can be re-sentenced by another Magistrate. I will hear the parties as to any further orders.APPENDIX APolice v Van BoxtelSummary of Offences

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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Citations

AGLC Citation

Police v Van Boxtel [2013] SASC 82

Most Recent Citation

Police v YARWOOD [2017] SASC 68

Cases citing this decision · 3 of 3 shown

McKenna v The Queen
[2022] SASCA 10 Para 25

…questioned the appropriateness of this approach, we were directed to several authorities supporting its permissibility.[11] [11] Police v Van Boxtel [2013] SASC 82 at [41]-[42] (White J); R v Smith [2014] SASCFC 6 at [21]-[23] (Sulan J, Nicholson J agreeing); R v Scuteri [2018] SASCFC 103 at [40] (Peek J, Lovell…
Police v YARWOOD
[2017] SASC 68 Para 20

…the sentence for a breaching offence to be made cumulative upon the previous sentence, however, there can be exceptions.[39] [39] Police v Van Boxtel [2013] SASC 82 at [41].…
R v Smith
[2014] SASCFC 6 Para 3

…v Police (1999) 75 SASR 331; Davis v Police [2004] SASC 318: Police v Smith [2004] SASC 38 ; Police v Morzanj [2005] SASC 263; Police v Van Boxtel [2013] SASC 82.…

View all 3 citing cases →

Cases cited in this decision · 16 of 16 shown

R v Major
[2021] QDC 63 Para 2

…judges. Unless and until that occurs, I consider it appropriate to continue to adopt the approach outlined in the authorities just referred to. [12] (1998) 70 SASR 488. [13] Ibid at 490. [14] Ibid. [15] [1999] SASC 217 at [20]-[22]. [16] See, for example, Pearce v The Queen [1998] HCA 57 at [45]; (1998) 194 CLR 610…
R v Leathley
[2013] SASCFC 42 Para 28

…ntenced twice for the offences which were the subject of the two suspended sentences. [8] R v Jeffries [2004] SASC 188 at [49]-[50]; R v Leathley [2013] SASCFC 42 at [7].…
R v Williams
[2013] SASCFC 26 Para 7

…ected in one of two ways: by shortening the sentence imposed for the 31 offences;[24] or by ordering partial concurrency.[25] [23] See R v Williams [2013] SASCFC 26 at [69]; R v Cave [2012] SASCFC 42 at [73]-[75], [78]. [24] See, for example, R v Williams [2013] SASCFC 26 at [83]. [25] See, for example, R v Cave [2…
R v Cave
[2012] SASCFC 42 Para 7

…ning the sentence imposed for the 31 offences;[24] or by ordering partial concurrency.[25] [23] See R v Williams [2013] SASCFC 26 at [69]; R v Cave [2012] SASCFC 42 at [73]-[75], [78]. [24] See, for example, R v Williams [2013] SASCFC 26 at [83]. [25] See, for example, R v Cave [2012] SASCFC 42 at [78]-[81].…
R v Bagnato
[2011] SASCFC 161 Para 2

…nd then consider questions of cumulation or concurrence, as well, of course, as questions of totality. [17] [2005] SASC 470; (2005) 93 SASR 274. [18] [2011] SASCFC 161 at [124]-[152]; (2011) 112 SASR 39 at 75-83.…
Hocking v Police
[2009] SASC 268 Para 21

…e any justification for the Magistrate taking a view of s 32(1)(b) which was different from that stated by the Full Court in Shepperbottom . [33] [2009] SASC 268; (2009) 105 SASR 79.…
R v Waugh
[2005] SASC 470 Para 2

…an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. [17] [2005] SASC 470; (2005) 93 SASR 274. [18] [2011] SASCFC 161 at [124]-[152]; (2011) 112 SASR 39 at 75-83.…
R v Jeffries
[2004] SASC 188 Para 28

…oach is that the respondent has now been sentenced twice for the offences which were the subject of the two suspended sentences. [8] R v Jeffries [2004] SASC 188 at [49]-[50]; R v Leathley [2013] SASCFC 42 at [7].…
R v Nemer
[2003] SASC 375 Para 4

…s as to shake public confidence in the administration of justice.[4] [1] (1994) 181 CLR 295. [2] Ibid at 299. [3] Ibid at 299-300. See also R v Nemer [2003] SASC 375 at [24]; (2003) 87 SASR 168 at 172. [4] R v Nemer [2003] SASC 375 at [24]; (2003) 87 SASR 168 at 172. The Approach of the Magistrate…
R v Shepperbottom
[2001] SASC 31 Para 16

…parole period. [33]It follows that in my opinion the head sentence was manifestly inadequate, and the sentence is one not authorised by law.[31] [30] [2001] SASC 31; (2001) 121 A Crim R 69. [31] Ibid at 73-4.…
Hermel v Police
[2000] SASC 34 Para 32

…irst error, as outlined above, is much more significant as it is an error of law affecting the Magistrate’s entire sentence. [11] Hermel v Police [2000] SASC 34 at [7]; (2000) 76 SASR 336 at 337-8. Manifest Inadequacy…
Pearce v The Queen
[1998] HCA 57 Para 2

…just referred to. [12] (1998) 70 SASR 488. [13] Ibid at 490. [14] Ibid. [15] [1999] SASC 217 at [20]-[22]. [16] See, for example, Pearce v The Queen [1998] HCA 57 at [45]; (1998) 194 CLR 610 at 624 in which McHugh, Hayne and Callinan JJ said: A judge sentencing an offender for more than one offence must fix an…
Everett v the Queen
[1994] HCA 49

…s 139; Road Traffic Act 1961 (SA) s 38; Bail Act 1985 (SA) s 17; Motor Vehicle Act 1959 (SA) s 91; Summary Offences Act 1953 (SA) s 17, referred to. Everett v The Queen (1994) 181 CLR 295; R v Nemer [2003] SASC 375; (2003) 87 SASR 168; Heal v Police [1999] SASC 374; (1999) 75 SASR 331; R v Jeffries [2004] SASC 188; R v Leat…
House v R
[1936] HCA 40 Para 11

…ne of the well recognised grounds for interfering with a discretionary judgment of the type discussed in House v The King [26] is established. [26] (1936) 55 CLR 499.…
Sentencing remarks by Judge Muscat dated 8 December 2023, p 16. The sentencing judge referred to R v Symonds
[1999] SASC 217 Para 2

…ppropriate to continue to adopt the approach outlined in the authorities just referred to. [12] (1998) 70 SASR 488. [13] Ibid at 490. [14] Ibid. [15] [1999] SASC 217 at [20]-[22]. [16] See, for example, Pearce v The Queen [1998] HCA 57 at [45]; (1998) 194 CLR 610 at 624 in which McHugh, Hayne and Callinan JJ said:…
House v The King
63 WN 176

…ce v Dyke (Unreported, Supreme Court of South Australia, 1 August 1997, Judgment No S6290); R v Williams [2013] SASCFC 26; R v Cave [2012] SASCFC 42; House v The King (1936) 55 CLR 499; R v Shepperbottom [2001] SASC 31; (2001) 121 A Crim R 69; Hocking v Police [2009] SASC 268; (2009) 105 SASR 79, considered.…

Legislation cited in this decision · 6

Criminal Law (Sentencing) Act 1988 (SA)
18A 2 mentions (from Para 7)
Criminal Law Consolidation Act 1935 (SA)
20 2 mentions (from Para 11)
Road Traffic Act 1961 (SA)
38 2 mentions (from Para 32)
Bail Act 1985 (SA)
17 1 mention
Motor Vehicle Act 1959 (SA)
91 1 mention
Summary Offences Act 1953 (SA)
17 1 mention