Quinn v Police - [2009] SASC 322

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
QUINN v POLICE
[2009] SASC 322
Judgment of The Honourable Chief Justice Doyle
14 October 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - JURISDICTION, POWERS AND DUTIES - CONSTITUTION OF COURT AND GENERALLY - SOUTH AUSTRALIA
Discussion of whether restriction on sentencing power of Magistrate imposed by s 19(3) Criminal Law (Sentencing) Act 1988 (SA) confines power to impose single sentence of imprisonment in respect of multiple offences conferred by s 18A of the Act.

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - PARTICULAR CASES
Appellant pleaded guilty to one count of attempting to cause damage to property by fire, one count of being on premises for an unlawful purpose, four counts of breaching a domestic violence restraining order, and one count of possessing an offensive weapon - Magistrate sentenced appellant to single sentence of imprisonment for two years ten months - appeal against sentence imposed by Magistrate.
Held: open to the Magistrate to proceed on the factual basis that he adopted - allowance for pleas of guilty not inadequate - weight given to need for deterrence not excessive - sentence imposed not manifeslty excessive or crushing - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 85(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 19(3); Domestic Violence Act 1994 (SA) s 15(1); Summary Offences Act 1953 (SA) s 15(1)(a), s 17(1), referred to.
The Queen v Perre (1986) 41 SASR 105, applied.
Hunt v Police [2001] SASC 145; Police v Curtis (2004) 145 A Crim R 587; Police v Miller (2007) 96 SASR 240; R v Corbett (1999) 206 LSJS 125; R v Gibbs (2004) 89 SASR 30, discussed.
R v Olbrich (1999) 199 CLR 270; R v Nguyen (2009) 103 SASR 370, considered.

QUINN v POLICE
[2009] SASC 322
Magistrates Appeal: Criminal

DOYLE CJ: An Information filed in the Magistrates Court charged Mr Quinn with one count of attempting to damage property by fire, an offence against s 85(1) of the Criminal Law Consolidation Act 1935 (SA). The potential for damage to which the fire gave rise was between $2500 and $30,000, and the maximum penalty for this offence is imprisonment for three years. The Information also charged Mr Quinn with one count of being on property for an unlawful purpose, an offence against s 17(1) of the Summary Offences Act 1953 (SA). The maximum penalty for this offence is imprisonment for six months or a fine of $2500. If the unlawful purpose for which the person is on the premises is itself punishable by a sentence of imprisonment of two years or more, the maximum sentence for an offence against s 17(1) is two years’ imprisonment.
Mr Quinn was also charged on a complaint with four counts of failing to comply with a domestic violence restraining order, an offence against s 15(1) of the Domestic Violence Act 1994 (SA). This offence attracts a maximum penalty of…

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.

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Details

Case: [2009] SASC 322
Decision Date: 14 October 2009

CaseChat Overview and Summary

In Quinn v Police, the appellant, Mr Quinn, appealed against the sentence of imprisonment imposed by a Magistrate. Mr Quinn argued that the Magistrate's sentencing process was flawed and that the sentence was excessive. He contended that the Magistrate adopted a factual basis for sentencing that was not put forward by the defence, did not consider the principle of totality in sentencing, and did not impose a single penalty for all the offences to which he had pleaded guilty. Additionally, he argued that the reduction in the sentence for pleading guilty was insufficient.

The legal issues before the court were whether the Magistrate erred in adopting a factual basis for sentencing that was not put forward by the defence, failed to consider the principle of totality, did not impose a single penalty for all the offences, and imposed a manifestly excessive sentence. The court needed to determine whether these alleged errors warranted a reduction in the sentence or a new sentencing hearing.

The court dismissed the appeal against sentence, finding that the Magistrate's sentencing remarks, although not explicitly mentioning the charge of being unlawfully on premises, indicated that the single penalty imposed related to that offence as well. The court held that even if the Magistrate failed to consider this offence, it would not have led to a better outcome for Mr Quinn. The court rejected the argument that the sentence was manifestly excessive, noting that the offending was serious and warranted a significant deterrent effect and protection for the victims. The court concluded that the sentence was heavy but justified given the circumstances and seriousness of the offending.

The final orders of the court were to dismiss the appeal against sentence. The court did not find merit in any of the grounds of appeal presented by Mr Quinn.

Orders

Orders of the court

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Background

Background to the litigation

Mr Quinn appeals against the sentence of imprisonment that the Magistrate imposed. He complains that in sentencing Mr Quinn, the Magistrate adopted a factual basis which departed from that put by defence counsel, which basis was not disputed by the police prosecutor. The grounds of appeal also complain that the sentence was manifestly excessive. He also argues that the Magistrate failed to have regard to the principle of totality. By an amended notice of appeal, a complaint is made that the Magistrate erred in failing to impose a single penalty in relation to all offences to which Mr Quinn pleaded guilty. The amended notice also asserts that the reduction in the sentence that the Magistrate allowed on account of Mr Quinn pleading guilty was insufficient. I granted the appellant permission to amend his grounds of appeal to include the proposed additional grounds.Background Mr Quinn is 55 years old. He was in a long term relationship with Ms Smith, with whom he had two children. The relationship ended in 2007. A Magistrate made an order restraining Mr Quinn from being on premises in which Ms Smith or their two children live, reside or frequent, and from contacting Ms Smith or their two children. Despite this order, at 4.00pm on 27 November 2008 Mr Quinn went to the home address of Ms Smith. She was home at the time. She saw Mr Quinn peering through a gate on her property. When she asked Mr Quinn what he was doing, he ran into some bushes on her property. Mr Quinn was abusive towards Ms Smith, but left the property and walked down the road. Shortly after, Ms Smith saw Mr Quinn looking through the front window of her house. Ms Smith did not go outside, and Mr Quinn left the property. This incident is the subject of the first charge of breaching a domestic violence restraining order, the first count charged on the complaint. On 14 December 2008, around 11.00pm, Ms Smith heard someone banging on the front door of her house. She recognised the voice of the person to be that of Mr Quinn. She did not answer the door. Mr Quinn continued to bang at the door. Their son went to the door and asked who was there. Mr Quinn said that he was there. Ms Smith still did not answer the door, and Mr Quinn soon left. This incident is the subject of the second charge of breaching a domestic violence restraining order, the second offence charged on the complaint. Very shortly after, at 11.30pm that day, Ms Smith’s father was in bed when he heard a noise at the gate of his home. He looked out of his bedroom window, which faced the back yard, and saw that a security light had been activated which shone over the lawn. He could see the shadow of a person near the decking to the rear of the house. Mr Smith went out of the house through the front door, and went around the side of the house, through the gate from which the noise that he had heard had come. The gate was open. When he entered the back yard, he saw a plastic bottle lying next to the edge of the decking. The bottle had liquid in it, and Mr Smith saw a piece of burning material protruding from the top of the bottle. Mr Smith could smell petrol. Mr Smith also saw Mr Quinn trying to climb over a fence into another yard. Mr Smith removed the bottle from the deck, and extinguished the material.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I reject these grounds.Conclusion Although the Magistrate’s sentencing remarks do not refer to the charge of being unlawfully on premises, the endorsement on the court file indicates that the single penalty imposed by the Magistrate relates to that offence as well. Even if the Magistrate failed to consider this offence, that could not have led to a better outcome for Mr Quinn. There is no need to pursue that point any further. For these reasons I dismiss the appeal against sentence.

Ratio Decidendi

Legal Principle Established

If this ground is intended to raise a complaint that the sentence is excessive, then the answer is that I do not agree. The sentence is a heavy one, but the offending is serious offending of its kind. I will return to this issue under the next heading.Ground 1 and Ground 2 – Excessive penalty and considerations of totality I do not agree that the sentence is manifestly excessive. Nor do I agree that it is a sentence which, although justifiable in its components, in the end results in a punishment that is unduly crushing or burdensome, or out of proportion to the overall criminality. I agree that the sentence is a heavy one. But the offending is serious. There are four separate breaches of the restraining order. Mr Quinn has breached the restraining order in the past. All offences were committed in circumstances in which the different victims must have felt fearful for their safety. The offending has had adverse effects on the well-being of the victims. The offending conduct cannot be treated as a minor nuisance or an annoyance. It would have caused real apprehension. There are clear indications that the offences call for a sentence that will have a significant deterrent effect on Mr Quinn, and that will provide a measure of protection for Ms Smith and her family. I reject these grounds.Conclusion Although the Magistrate’s sentencing remarks do not refer to the charge of being unlawfully on premises, the endorsement on the court file indicates that the single penalty imposed by the Magistrate relates to that offence as well. Even if the Magistrate failed to consider this offence, that could not have led to a better outcome for Mr Quinn. There is no need to pursue that point any further. For these reasons I dismiss the appeal against sentence.