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R v Bartels

R v Bartels

Case [2018] SASCFC 34 11 May 2018

Appeal

Charge

Sentencing

Statutory Construction

Criminal Law

Statutory Interpretation

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BARTELS
[2018] SASCFC 34
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Lovell and The Honourable Justice Doyle)
11 May 2018
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - MISAPPLICATION OF MONEY ETC BY PUBLIC SERVANT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant pleaded guilty to eight counts of abuse of public office and two counts of failing to comply with a bail agreement. In addition there was one further count of abuse of public office to be taken into consideration in sentencing.
In relation to two of the counts of abuse of public office to which the appellant pleaded guilty, the sentencing judge commenced with a notional head sentence of three years imprisonment. After a reduction of approximately 30 per cent on account of the appellant’s guilty pleas her Honour imposed a sentence of two years, one month and one week imprisonment. In relation to the other six counts of abuse of public office and the further count to be taken into consideration, the sentencing Judge commenced with a notional head sentence of six years imprisonment. After a reduction of approximately 40 per cent on account of the appellant’s guilty pleas, her Honour imposed a sentence of six years imprisonment. Her Honour ordered that these sentences be served cumulatively, resulting in a head sentence of five years, six months and one week imprisonment. Her Honour fixed a non-parole period of two years and six months. In relation to the two breach of bail offences, the appellant was convicted without further penalty. Her Honour further ordered that the appellant pay restitution.
The appellant appealed on the ground that the sentence imposed was manifestly excessive.
Held per Doyle J (Peek and Lovell JJ agreeing), allowing the appeal:
1.      The sentence imposed, which commenced with notional starting points totalling nine years imprisonment, was manifestly excessive.
2.      On resentencing, it is appropriate to commence with notional starting points totalling six years imprisonment.
3.      After reductions for her pleas of guilty, it is appropriate that the appellant be resentenced to three years and ten months imprisonment, with a non-parole period of 21 months.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 251; Sentencing Act 2017 (SA) s 26, referred to.
R v Hronopoulos [2017] SASCFC 143; R v Wiskich (2000) 207 LSJS 431; House v The King (1936) 55 CLR 499; R v Nath (1994) 74 A Crim R 115; R v Buckskin [2010] SASC 138; R v Howat [2017] SASCFC 41; R v Davies (1996) 88 A Crim R 226; R v Cavanagh [1999] SASC 418; R v Powell (2001) 81 SASR 9; Heaft v Police (2004) 87 SASR 496; Police v Curtis (2004) 145 A Crim R 587; R…

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

AGLC: R v Bartels [2018] SASCFC 34
Case: [2018] SASCFC 34
Decision Date: 11 May 2018

CaseChat Overview and Summary

The case of *R v Bartels* concerned an appeal against conviction and sentence. The appellant, Bartels, was a public servant who had been convicted of misapplying Commonwealth property contrary to s 86(1)(a) of the *Crimes Act 1914* (Cth). The appeal was heard by the Full Court of the Supreme Court of South Australia.

The primary legal issue before the Full Court was whether the evidence was sufficient to establish that the appellant had intentionally misapplied the Commonwealth property. The appellant also appealed against the severity of the sentence imposed.

The Court considered the elements of the offence under s 86(1)(a) of the *Crimes Act 1914* (Cth), which requires proof that the public servant intentionally misapplied property belonging to the Commonwealth. The Court analysed the appellant's conduct and the surrounding circumstances to determine if the necessary intent could be inferred. Regarding the sentence appeal, the Court reviewed the sentencing judge's considerations and applied the principles governing appeals against sentence, assessing whether the sentence was manifestly excessive in all the circumstances.

The Full Court dismissed the appeal against conviction. However, the appeal against sentence was allowed, and the Court varied the sentence imposed.

Orders