POPOWYCZ v POLICE - [2016] SASC 126

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…

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.

Keep reading for free

Create a free CaseChat account to read POPOWYCZ v POLICE and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] SASC 126
Decision Date: 12 July 2016

CaseChat Overview and Summary

The appellant, Popowycz, brought an appeal against the sentence imposed by the Magistrates Court of South Australia. The appeal was heard by the Supreme Court, which found that the sentence was not manifestly excessive. The appellant had been charged with aggravated assault and damage to property, but pleaded guilty to a basic assault and the property damage charge. The maximum penalty for the basic assault offence was two years imprisonment. The court considered the appellant's background and relevant prior convictions in its sentencing decision. The appellant's appeal was dismissed by the Supreme Court.

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.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 the other count to a basic assault. The appellant agreed to plead guilty to the basic offence of assault on the first day of trial on 12 April 2016. The maximum penalty of imprisonment for that offence is two years. The prosecution and the appellant agreed the facts of the assault. The agreed facts were that the assault occurred in the course of a discussion between the appellant and his former girlfriend, the complainant, about reimbursement for bond money on what had been their shared rental accommodation. The relationship between the appellant and the complainant had ended in July 2015. The offences were committed on 21 August 2015, about six weeks after the breakdown of the relationship. The discussion about the return of the bond money extended over some six hours and became heated. It culminated in the appellant grabbing at the complainant’s necklace and breaking it. It was an agreed fact that the assault was committed by putting the complainant in fear. After grabbing at the necklace, the appellant left it on the premises but punched a hole in a gyprock panel of the bathroom wall before he left. The appellant pleaded guilty to the offence of damage property based on that conduct. There is no appeal with respect to that conviction, as the Magistrate imposed no further penalty in light of the penalty imposed on the assault. The Magistrate considered the submissions as to the appellant’s objective factors. He was 32 years of age, was born in Adelaide and had a good relationship with his parents and his sibling. The appellant had a good employment history working in seafood processing, however that employment was interrupted by a work injury. On the appellant’s arrest for the offences of aggravated assault and wilful damage, he voluntarily entered into an abuse prevention program and completed six of the 24 modules of that program. His attendance was not regular and was interrupted for a number of different reasons given by the appellant to the persons conducting that course. The appellant had relevant prior convictions to which the Magistrate had regard. They included an offence of aggravated assault committed on 5 September 2011 for which the appellant was convicted on 22 March 2012 and placed on a good behaviour bond in the sum of $1,000 for a period of 18 months. Within nine months of entering into the bond the appellant committed offences of unlawful possession and possession of a firearm without a licence. Those offences were therefore committed in the currency of the good behaviour bond. On 27 September 2013 the appellant was convicted and a suspended sentence of two months’ imprisonment was imposed. The period of the bond for that suspension was 12 months.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KOURAKIS CJ (dissent)

Ultimately, both the text of the Sentencing Act to which I have referred and the therapeutic and rehabilitative purposes of a bond combine to result in a reading of the word ‘sentence’ which excludes the length and the conditions of the bond from the word ‘sentence’ as it appears in s 10B. Ground 2 must be dismissed.Conclusion For the above reasons I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.