SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POPOWYCZ v POLICE
[2016] SASC 126
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
12 July 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PROCEDURE
Appeal against sentence.
The appellant was charged with two counts of aggravated assault and one charge of property damage. The appellant pleaded guilty to one count of property damage. The two charges of aggravated assault were amended to one count of basic assault, to which the appellant pleaded guilty.
The Magistrate imposed a sentence of one month and three weeks imprisonment, which was reduced by 40 per cent from three months, suspended upon the appellant entering into a $400 bond to be of good behaviour for a period of 18 months.
The appellant appealed on two grounds. Firstly, that the imposition of imprisonment was manifestly excessive. Secondly, that the Magistrate erred in not applying the 40 per cent reduction to the whole of the sentence, including the good behaviour bond.
Held, dismissing the appeal:
1. The sentence imposed was not manifestly excessive.
2. The length and conditions of the term of the bond does not fall within the meaning of the word ‘sentence’ as defined in s 10B(2)(a) of the Criminal Law (Sentencing) Act 1988 (SA).
Criminal Law Consolidation Act 1935 (SA) ss 20(3), 348; Criminal Law (Sentencing) Act 1988 (SA) ss 3, 10, 10B, 11, 38, 39, referred to.
POPOWYCZ v POLICE
[2016] SASC 126
KOURAKIS CJ. This is an appeal against the sentence imposed on a conviction for assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
The Magistrate imposed a sentence of one month and three weeks imprisonment, which was reduced by 40 per cent from three months, suspended upon the appellant entering into a $400 bond to be of good behaviour for a period of 18 months.
The appellant appeals on the grounds that:
1the imposition of imprisonment was manifestly excessive;
2the Magistrate erred in not applying the relevant 40 per cent discount to the whole of the sentence, including the good behaviour bond.
I would dismiss the appeal. The sentence imposed by the Magistrate was not manifestly excessive. The statutory reductions of sentences do not apply to the term of a bond. My reasons follow.
Background
On 21 August 2015 the appellant was charged with two counts of aggravated assault[1] and one count of damage to property.[2] The appellant pleaded guilty to the charge of damage to property on 20 October 2015 but contested the assault charges.
[1] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA).
The assault charges were resolved by a prosecution agreement to withdraw one of the counts of aggravated assault and amending…
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- Case
- [2016] SASC 126
- Decision Date
CaseChat Overview and Summary
The legal issues in this case concerned the interpretation of sentencing provisions and the proper procedure for imposing a suspended sentence of imprisonment. The appellant argued that the term of the bond and its conditions were part of the sentence and should therefore be subject to statutory reductions. The court disagreed, finding that the term and conditions of the bond were not part of the sentence and were not subject to reductions. The court also considered whether the bond was a "sentence" for the purposes of certain sentencing provisions and concluded that it was not.
The court's reasoning was based on the language of the relevant legislation and the therapeutic and rehabilitative purposes of a bond. The court found that the term and conditions of the bond were not part of the sentence and were not subject to reductions. The court also found that the bond was not a "sentence" for the purposes of certain sentencing provisions, and therefore those provisions did not apply. The court held that the sentence imposed by the Magistrate was not manifestly excessive and dismissed the appeal.
The final orders of the court were that the appeal be dismissed, and the sentence imposed by the Magistrate was upheld.
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