R v Ossitt

Case [2011] SASCFC 23

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v OSSITT

[2011] SASCFC 23

Judgment of The Court of Criminal Appeal

(The Honourable Justice White, The Honourable Justice Kelly and The Honourable Justice Peek)

1 April 2011

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PROCEDURE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

The respondent was sentenced to a period of imprisonment for the offences of theft and aggravated assault causing harm - the sentencing Magistrate suspended the sentence upon the respondent entering into a bond - the respondent breached the bond, by committing further offences - a District Court Judge revoked the original suspension, but then purported to suspend both the term of imprisonment for the original offences, and the sentence of imprisonment which he imposed for the later offences - the Director sought permission to appeal against the suspensions on the basis that suspension of either sentence was precluded by ss 58(3) and 38(2) respectively of the Criminal Law (Sentencing) Act 1988 (SA).

Held:  permission to appeal granted - the suspension of the sentences was not authorised - respondent re-sentenced.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38, s 58; Criminal Law Consolidation Act 1935 (SA) s 20, s 134, s 137, s 340, referred to.
R v Nemer (2003) 87 SASR 168, applied.
Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; R v Osenkowski (1982) 30 SASR 212; Dinsdale v The Queen (2000) 202 CLR 321; R v Robinson [2004] SASC 189; R v Ivic [2006] SASC 8; R v Sumner & Sumner [2007] SASC 376; R v J, W (2010) 199 A Crim R 486; R v Allpass (1993) 72 A Crim R 561; R v Buckman (1988) 47 SASR 303; Police v B, WR (2005) 91 SASR 451, considered.

R v OSSITT
[2011] SASCFC 23

R v OSSITT  

Court of Criminal Appeal:       White, Kelly and Peek JJ

  1. WHITE J. The Director of Public Prosecutions seeks permission to appeal against a sentence imposed in the District Court, on the ground that the sentence was not authorised by law.

  2. The respondent concedes that the sentence is affected by error and that permission to appeal should be granted so that the error can be corrected.

    Background

  3. The respondent committed two offences on 23 June 2006:  aggravated assault causing harm[1] and theft.[2] He was sentenced for those offences in the Magistrates Court on 11 October 2007. The Magistrate imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) of imprisonment for three months and suspended that sentence upon the respondent entering into a bond in the sum of $200 to be of good behaviour for a period of two years and to comply with other…

Continue reading R v Ossitt

Sign in free to access the full text

Details
AGLC
R v Ossitt [2011] SASCFC 23
Case
[2011] SASCFC 23
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions sought permission to appeal against a District Court Judge's sentencing orders concerning the respondent, who had been convicted of theft and aggravated assault causing harm. The initial sentence for these offences, imposed by a Magistrate, was a term of imprisonment which was suspended upon the respondent entering into a bond. The respondent subsequently breached this bond by committing further offences. The District Court Judge, upon revoking the original suspension, then purported to suspend both the original suspended sentence and the new sentence imposed for the later offences. The Director's appeal was based on the contention that such suspensions were precluded by specific provisions of the *Criminal Law (Sentencing) Act 1988* (SA).

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the District Court Judge had the legal authority to suspend the sentences in the manner he did, given the respondent's prior breach of a suspended sentence and the relevant statutory provisions. Specifically, the court had to determine if sections 58(3) and 38(2) of the *Criminal Law (Sentencing) Act 1988* (SA) prohibited the suspension of the original sentence and the new sentence, respectively.

The Full Court held that the District Court Judge's sentencing orders were affected by error and that permission to appeal should be granted. The court reasoned that the suspension of the sentences was not authorised by law. Consequently, the appeal was allowed, the District Court Judge's sentence was set aside, and the respondent was re-sentenced. The original suspended sentence was revoked, with three months of time spent in custody credited towards it. For the later offences, a sentence of 15 months imprisonment with an eight-month non-parole period was imposed, but this sentence was suspended upon the respondent entering into a bond to be of good behaviour for one year.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The respondent concedes that the sentence is affected by error and that permission to appeal should be granted so that the error can be corrected.Background The respondent committed two offences on 23 June 2006: aggravated assault causing harm[1] and theft.[2] He was sentenced for those offences in the Magistrates Court on 11 October 2007. The Magistrate imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) of imprisonment for three months and suspended that sentence upon the respondent entering into a bond in the sum of $200 to be of good behaviour for a period of two years and to comply with other conditions. [1] Contrary to s 20 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).[2] Contrary to s 134(1) of the CLCA. Unfortunately, the respondent did not comply with this bond. Only two months later he committed again the offences of theft[3] and aggravated assault causing harm.[4] These were the offences for which the respondent was sentenced in the District Court. In the early hours of 11 December 2007, the respondent came upon his victim who was sitting on a bench in Victoria Square in the City. The victim was inebriated. The respondent forcibly took the victim’s expensive watch from his wrist and then struck the victim’s head with a bottle. This resulted in a severe gash as well as concussion.[3] Contrary to s 134(1) of the CLCA.[4] Contrary to s 20 of the CLCA. The respondent was himself intoxicated at the time. He was arrested later on the same morning. Following his arrest, the respondent spent some eight months in custody. As the victim chose not to provide a Victim Impact Statement, the District Court Judge had no information as to the continuing effects, if any, of his physical injuries. However, the stolen watch was recovered. As a result of the incident on 11 December 2007, the respondent was charged with a single offence of aggravated robbery.[5] He pleaded not guilty to that offence. Shortly before his trial, the Director filed a fresh information alleging the offences of aggravated assault causing harm and theft, and the respondent pleaded guilty to those offences.[5] Contrary to s 137(1) of the CLCA. The respondent is now 29 years of age. He left school at age 15 years, part way through Year 10. Since then, he has returned to school to complete Year 12 and has also undertaken some tertiary study. The respondent has had various employments including about three years working in aquaculture. He has not worked since 2007. The respondent has a history of drug and alcohol abuse. A psychologist has assessed him as being of average intelligence and as having a number of traits characteristic of a borderline personality disorder. The respondent has numerous prior offences with his antecedent report extending to four pages. Many of his previous offences appear to have been associated with his excessive alcohol consumption. However, since 2007 there has been a decline in his offending.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WHITE J
I am satisfied that it is appropriate to suspend the sentence upon the respondent entering into a bond in the sum of $500 to be of good behaviour for a period of one year. I have fixed one year so as to take account of the fact that the respondent has already been subject to a bond, including supervision, for more than one year. I would not impose any additional conditions. In that respect I have taken into account that the supervision and direction condition imposed by the Judge was for a period of 12 months only.Conclusion For the reasons stated above, I would grant permission to the Director to appeal, and would allow the appeal. I would set aside the sentence of the Judge, including his order in respect of the breached bond. In relation to the application for the enforcement of the bond in respect of the sentence imposed on 11 October 2007, I would revoke the suspension and, subject to the next order, direct that that sentence be carried into effect. Acting under s 58(4)(b) of the Sentencing Act, I would direct that three months of the time spent in custody by the respondent before sentencing be regarded as satisfying the order for imprisonment imposed in the Magistrates Court. In relation to the offences committed on 11 December 2007, I would impose a single sentence under s 18A of the Sentencing Act of imprisonment for 15 months and would fix a non‑parole period of eight months with that sentence to commence as of today. I would order that this sentence be suspended upon the respondent entering into a bond in the sum of $500 to be of good behaviour for a period of one year. KELLY J: I agree with the orders proposed by White J and with his reasons. PEEK J: I agree with the orders proposed by White J and with his reasons.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

Full text does not contain this section.