R v Scott - [2004] SADC 111

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SCOTT
Reasons for Sentence of His Honour Judge Smith
16 August 2004
CRIMINAL LAW
Sentencing - multiple offences - twelve counts of various offences - penalties include imprisonment and fines - consideration of imposing global penalty pursuant to s18A Criminal Law (Sentencing) Act - discussion of impermissibility of imposing global penalty of imprisonment for offences for which penalty prescribed is only a fine - global penalty of imprisonment arrived at by fixing notional penalties discounting for pleas of guilty and then applying principles of totality - refusal to order compensation due to no real prospect of defendant being able to comply with such an order.
Bail Act 1985 s17; Criminal Law Consolidation Act 1935 s134; Summary Offences Act 1953 s6(1), s6(2), s18(2), s41(1), s21(1); Motor Vehicles Act 1959 s137; Controlled Substances Act 1984 s31(1)(a), 52; Criminal Law (Sentencing) Act 1988 s18A, s13; Criminal Assets Confiscation Act 1986 s8, referred to.
Hermel v Police (2000) 76 SASR 336; R v Tu (2001) 216 LSJS 279; R v Major (1998) 70 SASR 488; R v Gale (1999) 74 SASR 325, applied.

CRIMINAL LAW
Sentencing - breaches of suspended sentence bond - whether proper grounds to forgive breaches - whether proper grounds excuse failure to comply pursuant to s58(3) of Criminal Law (Sentencing) Act 1988.
Criminal Law (Sentencing) Act 1988 s58(3)(b)(A), s58(3)(b)(D), s58(3), referred to.
Heal v Police (1999) 75 SASR 331, considered.

R v SCOTT
[2004] SADC 111
Introduction

Lee-Anne Scott has pleaded guilty to 16 offences. These are as follows:
•       Fail to answer questions;
•       Resist police (3);
•       Possessing amphetamine;
•       Unlawful possession;
•       Loitering;
•       Assault police;
•       Failure to comply with bail agreement (7);
•       Dishonestly take property without owner’s consent; and
•       Permit persons of bad character to frequent the premises.
The defendant is before the District Court because she has breached a bond, entered into on 3^rd April 2003 before Judge Rice. For an offence of possessing methylamphetamine for supply committed on the 9^th day of February 2002 the defendant, in the District Court on the 3^rd April 2003, was imprisoned for two years with a non-parole period of 12 months. That term of imprisonment was suspended upon the defendant entering into a bond to be of good behaviour for a period of two years. That bond has been breached by the abovementioned 16 offences. The defendant has acknowledged the breach of bond.
Circumstances of the Offending
I shall deal with the breaching offences in chronological order.
On 20^th October 2003 police attended her home and asked her questions regarding the driver of a motor vehicle. She did not answer truthfully. She was arrested and charged with failing to answer questions. On arrest, she ran away from the police, only to be apprehended on her neighbour’s front lawn. She then resisted the arrest by flaying her arms and twisting her body. This resulted in the further charge of resist…

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.

Continue reading R v Scott

Details

AGLC: R v Scott [2004] SADC 111
Case: [2004] SADC 111
Decision Date: 16 August 2004

CaseChat Overview and Summary

Lee-Anne Scott has pleaded guilty to sixteen offences, including failing to answer questions, resisting police, possessing amphetamines, loitering, assaulting police, failing to comply with a bail agreement, dishonestly taking property without owner’s consent, and permitting persons of bad character to frequent her premises. She is before the court because she has breached a bond entered into on 3rd April 2003. The defendant was imprisoned for two years for possessing methylamphetamine for supply, but this term of imprisonment was suspended upon the defendant entering into a bond to be of good behaviour for a period of two years. The court must decide whether to impose a global penalty of imprisonment for the offences, whether there are proper grounds to excuse the breach of the bond, and whether to order compensation.

The court has decided to impose a global penalty of imprisonment for the offences, arriving at the penalty by fixing notional penalties for the individual offences, discounting for the pleas of guilty, and applying the principles of totality. The court has refused to order compensation because there is no real prospect of the defendant being able to comply with such an order. The court has also decided that there are proper grounds to excuse the breach of the bond, primarily because the defendant has taken steps to ensure she is drug free and has a distinct prospect of continuing with the rehabilitation measures now in place. Therefore, the court has refrained from revoking the order suspending the sentence of imprisonment imposed by Judge Rice and has extended the term of the bond by 1 year.

The final orders of the court are as follows: the defendant is sentenced to 1½ months imprisonment, suspended on condition that she enter into a bond in her own recognisance in the sum of $500 to be of good behaviour for a period of 2 years, with conditions of supervision by a Community Corrections Officer, undertaking counselling and/or treatment courses in respect of substance abuse, residing where directed by the Community Corrections Officer, abstaining from the possession and consumption of illicit drugs and non-prescribed medication, and submitting to urine analysis for non-prescribed medication as directed by her Community Corrections Officer. The defendant is excused for breaching the bond on the basis that there are proper grounds for so excusing, and the said bond is varied by extending the term by 1 year and varying the conditions to be the same as the conditions of the bond relating to the 1½ months imprisonment. The court has also ordered forfeiture of all items seized by police to be forfeited to the Crown.

Orders