R v Graham
[2007] SADC 2
•19 January 2007
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GRAHAM
[2007] SADC 2
Reasons for Ruling of His Honour Judge Tilmouth
19 January 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - MISCELLANEOUS MATTERS
Power of Magistrate to impose one sentence for multiple offences - power of Magistrate to impose one sentence of more than two years imprisonment.
Held: The limitation contained in s19(3) of the Criminal Law (Sentencing) Act 1988 (SA) does not operate to prevent a Magistrate from arriving at the one sentence for multiple offences of more than two years.
Held: further that before remanding a person for sentence to the District Court for sentence pursuant to s19(5), the Magistrate should in fairness hear the parties as to that proposal and form the necessary opinion on sufficient material that a "sentence should be imposed" exceeding two years.
Criminal Law (Sentencing) Act ss19, 18A, referred to.
Ticala & Ene v Police 16 July 1997 No S6262 BC 9704317; Rang v Police 12 November 1993 unreported, VC 9300541; Worthington-Eyre v District Court and SA Police (1997) 193 LSJS 197; Police v Curtis & Marshall (2004) 145 A Crim R 587; Canino v Venning (1993) 66 A Crim R 92 113 FLR 327, applied.
Hunt v Police [2001] SASC 145, not followed.
R v GRAHAM
[2007] SADC 2Preliminary
Paul Howard Graham (“Mr Graham”) is before the court on a series of summary and minor indictable offences, all within the sentencing jurisdiction of a Magistrates Court. They were remanded to this Court for sentence by order of a Magistrate made on 1 December 2006. Questions have arisen as to the validity of this course and the consequences flowing from it.
It appears the Magistrate took the view that a sentence should be imposed on Mr Graham exceeding the jurisdictional limit of the Court prescribed by s19(3) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”), that is to say two years imprisonment. Accordingly the Magistrate made the order pursuant to s19(5) of the Act. He did so after having read a preliminary assessment report of the Mental Health Diversion Court and without hearing the parties in relation to the proposed course of action.
Legislative framework
Sub-sections 19(3), 19(4) and (5) of the Act provide:-
(3) The Magistrates Court does not have the power to impose:-
(a) a sentence of imprisonment that exceeds 2 years;
…
(4) Subsection (3) applies whether the offence to which the sentence relates is a summary offence or a minor indictable offence.
(5) If the Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limits prescribed by sub-section (3), the Court may remand the defendant to appear for sentence before the District Court.
It can be seen that s19(4) fastens upon the definitive article, that is “the offence” to which the “sentence” in s19(3) pertains.
The Magistrate proposed proceeding to impose one single sentence with respect to all offences, which was open to him pursuant to s18A of the Act. As he considered the total head sentence could be in excess of the two year limitation prescribed by s19(3), he felt a sentence of that magnitude was beyond the jurisdiction of the Court. It appears he was influenced in making the order remanding the matter for sentence to this Court by the comments of Layton J in Lee v Police[1] and Lander J in Hunt v Police.[2]
[1] [2006] SASC 197
[2] [2001] SASC 145.
The issue is of some importance as it affects the orderly disposition of sentencing on multiple counts before the Magistrates Court, and the consequent effect on the business of this court. As such it is desirable to examine whether this order was duly made and whether the interpretation of the provision in question was correct. It must also be resolved how the District Court should proceed to dispose of the matter.
The Authorities
It is relevant in the first place to examine the legislation as it applied before s15 was enacted by s63 of the Statutes Amendment and Repeal (Sentencing) Act 1988 (SA). Section 129(2) of the Justice’s Act 1921 previously provided that a Court of Summary Jurisdiction “shall not inflict any punishment exceeding in the case of imprisonment, imprisonment for two years …”. This provision is in effect, no different from the present s19(3). In Canino v Venning[3] Perry J noted the “power to pronounce an aggregate penalty as one sentence did not deprive the summary court of jurisdiction” and enabled it to “impose one penalty in respect of all the offences charged, not exceeding the sum of the maximum penalties which could be imposed if a separate penalty were imposed in respect of each offence”.
[3] (1993) 66 A Crim R 92; 113 FLR 327, (at A Crim R 94)
With this construction in mind, attention may then be given to the two cases leading the Magistrate to dispose of the matter in the way that he did, acting upon the current legislation. The decision in Lee v Police[4] does not bear upon the issue. As the respondent conceded the sentence imposed exceeded the jurisdictional limit, Layton J was not called upon to consider the matter.[5] Her Honour noted the comments of Lander J in the second case influencing the Magistrate, Hunt v Police,[6] in which His Honour observed in passing (at[47]):
Once the Magistrate decided that it was appropriate to exercise power under s18A, he was not able to sentence the appellant to imprisonment for any more than two years, in total, in respect of those three offences.
An appeal was allowed on the basis that the sentencing Magistrate failed to acknowledge sufficiently the appropriate discount for an early plea of guilty,[7] hence these comments were strictly obiter.
[4] (Above).
[5] ([7-8]).
[6] (Above).
[7] (At [56-57]).
This is the only case in which the provision has been construed to operate in this way. Insofar as his Honour suggested two years was the “maximum of his jurisdiction” or that the Magistrate “imposed a sentence near his jurisdictional limit”,[8] those observations are in my respectful opinion, contrary to what Olsson J described in Worthington-Eyre v District Court and SA Police[9] as a “consistent line of reasoning in earlier cases”, namely Canino v Venning (above – Perry J), Rang v SA Police[10] and Ticala & Ene v Police,[11] decisions not apparently drawn to his attention. In each instance two other judges of the Supreme Court and Olsson J in Worthington-Eyre v Police, in considered reasons, came to the concluded view that s19(3) did not limit an aggregated sentence imposed by a Magistrate for multiple offences pursuant to s18A of the Act to one of two years. Accordingly the observations in Hunt v Police were not merely obiter, they were per incuriam.
[8] (At[55]).
[9] (1997) 193 LSJS 197.
[10] 12 November 1993 (Mulligan J).
[11] 16 July 1997 No S6262 BC 9704317 (Lander J).
Indeed, Hunt v Police is inconsistent with an earlier decision of Lander J himself, in Ticala & Ene v Police (above). In this instance his Honour expressly dismissed a submission that a Magistrate was not permitted to impose a sentence of any more than two years in total, in relation to multiple counts of theft:
I do not agree with that submission. At common law a Court imposed a sentence for each conviction on each offence. There was no power outside the Sentencing Act to impose one sentence in respect of a number of offences on an information or complaint. S18A has provided the power to impose one sentence for a number of offences on an information or complaint.
Section 19(3), in my opinion, limits the power of a Magistrate to impose a sentence of two years in respect of each offence. It is not concerned with the information or the complaint. I think so much is made clear by s19(4) which explains the limitation of the power under s19(3) by referring to an offence. In my opinion s19 prohibits a Magistrate from exercising a power to impose a sentence of imprisonment which exceeds two years in respect of any one offence.
In my opinion s19 must be read and understood as confining the power of the Magistrate’s Court to impose a sentence of imprisonment of two years or less on each separate offence on any information or complaint.
A ceiling on the power to sentence is merely a “statutory limit”, rather than one requiring the sentencing court to relate sentences to the jurisdictional limitation: Hallam v O’Dea.[12] The sentencing Court is required to commence its consideration of the sentence to be imposed from the maximum penalty provided for the offence in question, rather than from the jurisdictional limit imposed: Maynard v O’Brien,[13] Higgins v Fricker,[14] Nottle v Trenerry.[15]
[12] (1979) 22 SASR 133.
[13] (1991) 78 NTR 16.
[14] (1992) 63 A Crim R 473, 479.
[15] (1993) 3 NTLR 68; 113 FLR 242.
Subsequent decisions of the Supreme Court have also taken the contrary view to that in Hunt v Police. Gray J in Police v Curtis & Marshall [16] declined to apply it, preferring Ticala & Ene v Police, and Rang v SA Police[17] in which Mulligan J observed
There is no warrant for interpreting that section so as to mean that a sentence imposed pursuant to s18A for multiple offences may not exceed the maximum penalty for one offence permitted by s19(3).
Gray J reasoned as follows: (at [34-36])
[34] Section 19(3) limits the magistrate’s power to impose a sentence of more than two years for “an offence”. Section 18A allows one sentence to be imposed for multiple offending. Nothing in the wording of s18A suggests that a magistrate sentencing pursuant to this section is limited by the terms of s19(3) to impose the one sentence that does not exceed two years. On the contrary, the context of the legislation suggests that s18A provides sentencing magistrates with a practical alternative to imposing cumulative or concurrent sentences for separate offences on separate occasions.
[35] The limitation expressed in s19(3) relates to the maximum penalty to be imposed by a magistrate for any single offence and does not operate to prevent a magistrate from arriving at one sentence for multiple offences of more than two years imprisonment.
[36] The reasoning in Rang should be preferred. By imposing sentences of more than two years imprisonment for all of the offending of Curtis and Marshall, the magistrate did not exceed any limit placed upon him by the terms of s19 of the Sentencing Act.
A similar view was arguably taken by White J in Stehbens v Police,[18] although the authorities in point were not cited by him.
[16] (2004) 145 A Crim R 587.
[17] 12 November 1993 unreported, BC 9300541
[18] [2004] SASC 227 [24-28].
Magistrates powers under s18A not restricted by s19(5).
Accordingly, all the binding authorities in relation to the application of s19(5) to aggregated sentences imposed in the Magistrates Court, point in one direction. It is clear as a matter of construction that the section applies to “an offence” and that the prescription limiting the jurisdiction of the summary court to two years, applies to each offence but not to an aggregate sentence constituted under s18A.
To construe the section in any other way would seriously and unduly curtail the jurisdiction of the Magistrates Court in many cases involving multiple offences of any degree of seriousness and would therefore impede the orderly and timely disposition of justice in this State. Moreover, such a construction necessarily serves to clog the court lists and drain resources across two tiers of the judiciary, in relation to the offences ordinarily dealt with every day in the Magistrates Court. Such a construction is plainly not simply impracticable, but one likely to be costly, cumbersome and time consuming. It also permits the rather absurd consequence alluded to in Ticala & Ene v Police,[19] that separate informations relating to one defendant heard on different days, could result in valid sentences of more than two years, whereas if coincidentally heard by one Magistrate at the one time, they could not.
[19] (Above at BC p9)
Procedure under s19(5) of the Sentencing Act
When considering exercising the power conferred under s19(5), Magistrates should first embark upon an inquiry based on such material as is sufficient to enable the necessary threshold opinion to be duly and fairly formed, that a sentence should be imposed exceeding two years, before contemplating an order for remand to the District Court. Even then Magistrates should give both sides an opportunity to make submissions before doing so, lest procedural fairness be denied[20] and jurisdictional error occur.[21] It is insufficient for that purpose merely to conduct that inquiry on the basis of papers read in chambers and before hearing the parties in open court.
[20] Kioa v West (1985) 159 CLR 550, Stead v SGIC (1986) 161 CLR 141.
[21] Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476, Craig v State of South Australia (1995) 184 CLR 163.
Procedure in the District Court
It becomes unnecessary to determine whether the order for remand in this matter is a nullity: Worthington-Eyre v District Court of SA Police,[22] DPP (SA) v District Court of SA & Lowrie,[23] Nollen v Police[24] because both parties concede that irrespective of the validity of the order, this court is empowered to hear the matter, either as a valid remand for sentence under s19(5), or de novo, with a Judge of the Court sitting as a Magistrate pursuant to s22 of the Magistrates Act 1983 (SA) and s5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988, as interpreted and applied in Tarasenko v Boylan,[25] R v Gibbs,[26] and R v Smith.[27] In that event, this Court proceeding in either way, is empowered to impose a sentence if it is otherwise just and appropriate, which either exceeds or is less than the two years prescribed by s19(3) of the Act.
[22] (Above)
[23] (2005) 92 SASR 94.
[24] (2000) 78 SASR 421
[25] (1992) 58 SASR 587.
[26] (2004) 89 SASR 30.
[27] [2005] SASC 212 [6-7].
Accordingly, the Court determines that it has that jurisdiction to proceed to sentence Mr Graham, either by virtue of the order of the Magistrate under s19(5) or de novo under s22 of the Magistrates Act.[28] It will now proceed to arraign him, administer the allocutus and then to hear submissions from the parties with a view to sentencing him. If and when the point is reached that the court might be contemplating a sentence of more than two years, fairness requires that he be put on notice of that possibility: R v Delphin,[29] R v Smith.[30]
[28] (Above).
[29] (2001) 79 SASR 429 [57-59].
[30] [2005] SASC 212.
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