R v Police

Case [2002] SASC 403

R v POLICE
[2002] SASC 403

Magistrates Appeal

  1. Gray J      This is an appeal against sentence.

    Background

  2. The appellant R a young offender was jointly on information with two counts of damaging property, two counts of being unlawfully on premises and one count of larceny.[1] 

    [1] The information was in the following terms:

  3. All offences arose out of a course of conduct on 2 June 2002.  The appellant and friends attended two parties.  The appellant consumed alcohol and smoked marijuana.  At about 1:20 am with three other boys some of whom had also been drinking the appellant attended at the Naracoorte South Primary School. Windows were broken, bins damaged and pot plants upturned.  The group returned to the school at about 3:40 am and continued breaking windows. Approximately 35 windows were broken.  The boys also stole a letterbox and used that to effect damage.  The cost of repairs amounted to $18,508.93. The school incurred an additional cleaning cost of $1015.10.  The total expense resulting from the incident was $19,524.00.

  4. On 7 August 2002 the appellant pleaded guilty to all counts.  At the first attendance at the school he did not cause any damage. On the second occasion the appellant broke five windows.  He was present at the time the other boys took the letterbox but he was not directly involved in the theft. He did not use the letterbox in any damage that he effected.  His pleas were entered on the basis that he was a participant in a joint enterprise.  It was accepted that the appellant encouraged the involvement of others by his presence.  However it was not disputed that his level of participation was less than some of the other boys.  

  5. The appellant was aged 16 years at the time of the offending. He had an unblemished record.  He co-operated with the police and made full admissions about his involvement soon after the incident.  He also provided information about the conduct of others. A letter of apology from the appellant[2], a reference from his aunt who worked at the school and a letter from his parents were tendered. The appellant’s letter was prepared on his own initiative.  The appellant’s employer, the supervisor of his horticultural apprenticeship also provided a reference which included:

    “I have a lot of faith in his ability and stand by him as a promising young man.”  

    [2] The letter was as follows: “I would like to say sorry to the head master of the school, teachers and studints for all the trouble I have caused them. and to my Auntie [W] who works at the school and to my cusins who are studints to.  To my mum and dad and all my famley and to my boss [C].  I have lernt losts, to treat the couminity with respect and to behav proberly.  I will aspest my punement and do the right thing in the future.  I think what I did was wrong and that it hurt a lot of peole.  And that it was…

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AGLC
R v Police [2002] SASC 403
Case
[2002] SASC 403
Decision Date

CaseChat Overview and Summary

In the matter of R v Police, the appellant challenged both his convictions and his sentence, which were determined by a magistrate. The primary issue was whether the magistrate had properly considered the impact of the curfew conditions imposed during the appellant's bail period on his sentencing. Additionally, the case examined whether fresh evidence, concerning the potential impact of the appellant's convictions on his ability to obtain a visa, could be admitted on appeal.

The court had to decide if the magistrate's failure to consider the effect of the curfew conditions was a significant error affecting the fairness of the sentencing process. The court also needed to determine whether the fresh evidence regarding the visa implications could be considered despite not meeting the usual criteria for admissibility. The court applied principles from various precedents to balance the need for finality in court processes against the need to prevent miscarriages of justice.

The court found that the magistrate had indeed erred by not considering the impact of the curfew conditions on the appellant's liberty, a factor that should have been weighed under section 10(1)(o) of the Sentencing Act. This oversight warranted a re-sentencing. Regarding the fresh evidence, while it did not meet the strict criteria for admissibility, the court determined that it could be considered due to the significant potential impact on the appellant's liberty. The appeal was allowed, the convictions were set aside, and the sentence was quashed. The appellant was discharged on the condition of good behaviour, with specific obligations to be supervised and to abstain from alcohol and non-medically prescribed drugs for two years.

The court's decision underscored the importance of considering all relevant factors in sentencing and highlighted the flexibility of the court in admitting fresh evidence when it concerns significant matters affecting the liberty of the accused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The magistrate failed to have regard to the fact that the appellant had been subjected to a curfew from 7:00 pm till 7:00 am for the two months that he was on bail between 3 June 2002 and 7 August 2002. The curfew partially deprived the appellant of his liberty. This was a matter that could properly have been considered in the same way that home detention can be brought to account in the sentencing process.[18] A curfew is a relevant factor that should be considered pursuant to section 10(1)(o) of the Sentencing Act.[19][18] R v Malesevic (1999) 204 LSJS 32; see also R v Foster (No 2) [2001] SASC 154[19] “10. (1) A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:…(o) any other relevant matter.”Fresh Evidence The general principles governing the reception of fresh evidence on appeal are settled.[20] It must be established that the evidence could not have been obtained with reasonable diligence for use at first instance. It must be demonstrated that if given at first instance the evidence would probably have had an important influence on the result of the case. It must then be shown to be apparently credible evidence although it need not be incontrovertible. [20] Ventura v Sustek (1976) 14 SASR 395 at 399; Orchard v Orchard (1972) 3 SASR 89; Ladd v Marshall [1954] 1 WLR 1489 at 1491; R v Dorning (1981) 27 SASR 481; R v McIntee (1985) 38 SASR 432 In sentencing appeals the courts have adopted a more flexible view. Fresh evidence may be admitted to prevent a miscarriage of justice even if the conditions referred to have not been satisfied.[21] There is also a public interest in the finality of the court process. Tension can arise in the operation of these two principles. In seeking to resolve this tension the courts have developed rules to facilitate the reception of evidence in appropriate cases. The decisions of Aplin v Police[22], Neill v Police[23], R v Brain[24] and R v Jenkins[25] are examples of means by which this tension can be resolved. In the criminal court where liberty may be lost the overriding principle must be the interests of justice.[21] Bean v Considine (1965) SASR 351; R v Maniadis (1997) 1 QdR 593[22] [1999] SASC 273[23] [1999] SASC 270[24] (1999) 74 SASR 92[25] (2000) 209 LSJS 341 After the appellant was sentenced counsel received information that potentially had some relevance to sentence. The information came from the appellant’s mother and was in substance that her extended family resided overseas and that the convictions and suspended detention order were likely to prevent the appellant from obtaining a visa. No foundation was laid to substantiate this assertion on the hearing before this court. An adequate basis has not been established for this material to be received as fresh evidence. However errors earlier identified require this court to re-sentence the appellant. Regard can be had in the re-sentencing process to the possibility that the appellant may be unable to obtain an entry visa.

Decision

Reasons for decision

The appeal is allowed. The convictions recorded by the magistrate are set aside. The sentence imposed is set aside. The appellant is discharged on an obligation to be of good behaviour without conviction. The terms of the obligation are that he be of good behaviour for a period of two years; that he be supervised by a Family and Youth Services officer and obey the lawful directions of that officer; that he undertake such courses and programs as may be directed and that he abstain from consuming alcohol and using non medically prescribed drugs for two years.LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT

Ratio Decidendi

Legal Principle Established

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