Police v WINDLASS

[2011] SASC 18

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

POLICE v WINDLASS

[2011] SASC 18

Judgment of The Honourable Justice Duggan (ex tempore)

16 February 2011

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - GENERALLY

Appeal against decision of Magistrate – respondent charged with various offences on two informations – facts admitted in relation to some charges – doubt as to whether respondent pleaded guilty to all charges – no submissions made by appellant or respondent on one offence – one penalty imposed pursuant to s 18A of Criminal Law (Sentencing) Act 1988 (SA) – no reference made to offence in sentencing remarks of Magistrate – whether sentence should have been imposed in absence of submissions in relation to the offence – whether sentencing process miscarried.

Held: appeal allowed – sentence imposed by Magistrate set aside.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

POLICE v WINDLASS
[2011] SASC 18

Magistrates Appeal: Criminal

1. DUGGAN J (ex tempore):  The respondent resides at Kanpi on the APY Lands.

2. On 28 July 2010 he appeared before a Magistrate sitting at Kanpi charged with various offences on two informations.  He was represented by Ms Tania Chumak.

3. The first information charged the respondent with the offences of disorderly behaviour, aggravated assault on a police officer, resisting arrest and property damage (“the Coober Pedy offences”).  It was alleged that these offences were committed at Coober Pedy on 1 January 2008.

4. The second information charged the respondent with aggravated assault causing harm (“the Ernabella offence”) alleged to have been committed at Ernabella on 15 January 2008.

5. There is some doubt on the material before me as to whether the respondent pleaded guilty to all the charges.  The facts were admitted in relation to some of the charges.  Ms Chumak states in her affidavit of 2 February 2011 that she made submissions to the Magistrate in relation to the Coober Pedy offences and, when she completed those submissions, the Magistrate embarked upon her sentencing remarks.  No submissions were made by either the prosecutor or Ms Chumak on the Ernabella offence; nor did the prosecutor have the opportunity to address the Magistrate on the prosecution facts in relation to that matter.

6. The Magistrate made no reference to the Ernabella offence in her sentencing remarks. However, the Court file records that she imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) for the offences in both informations.

7. The sentence consisted of an order that the respondent perform 64 hours of community service within 12 months. 

8. It is asserted by the appellant and conceded by the respondent that the sentencing process miscarried.  The sentence should not have been imposed in the absence of submissions in relation to the Ernabella offence.

9. The appeal is allowed and the sentence imposed by the Magistrate is set aside.

10. I have been advised that the respondent is required to attend the next Kanpi Magistrates Court circuit on other charges.  It would seem appropriate that he be ordered to appear before the Court on that occasion for sentencing in relation to the Coober Pedy and Ernabella offences which are the subject of the present appeal.  In view of the likelihood that the same Magistrate will preside over that Court, I will not make an order that the respondent be sentenced by another Magistrate.