R v SLAVIN-MOLLOY - [2021] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
R v SLAVIN-MOLLOY
[2021] SASC 134
Judgment of the Honourable Justice Stanley
25 November 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
This is an appeal against sentence. On 9 June 2021, before the Elizabeth Magistrates Court, the appellant pleaded guilty to an offence of assaulting another person thereby causing harm. He was sentenced on 13 August 2021 to 16 months imprisonment reduced from 24 months on account of his guilty plea. The magistrate made this sentence cumulative to a sentence handed down on 10 May 2021 for other unrelated offences. This gave a total head sentence of 26 months imprisonment. The magistrate further set a non-parole period of 16 months imprisonment backdated to 10 May 2021.
On 15 March 2021, when he first appeared before the Elizabeth Magistrates Court on the subject offence, the appellant had been in custody since 13 June 2020 in relation to other unrelated offences which remain contested in separate proceedings. This is a period of 276 days or nine months and six days in custody on remand. He has remained in custody since.
The appellant claims that the sentencing magistrate erred in failing to reduce his sentence for time spent in custody before the sentence was imposed. It was necessary to have regard and treat differently, two separate periods of custody being between 13 June 2020 and 15 March 2021 and between 15 March 2021 and 10 May 2021.
Held, per Stanley J:
1. There was no error in the sentencing process;
2. The appeal should be dismissed.
Sentencing Act 2017 (SA) 39(2)(b), 44(2); Criminal Law Consolidation Act 1935 (SA) 20(4), referred to.
R v Bol [2017] SASCFC 148, distinguished.
Wittwer v Police [2004] SASC 226; House v R (1936) 55 CLR 499; Dinsdale v R (2000) 202 CLR 321; Naera v Police (1995) 184 LSJS 328; Taylor v Hayes (1990) 53 SASR 252; Ware v Betts (1987) 134 LSJS 212; Wessling v Police (2004) 88 SASR 47; R v Hughey [2008] SASC 263; R v Sprecher [2015] SASCFC 76; R v Arts and Briggs [1998] 2 VR 261, considered.

R v SLAVIN-MOLLOY
[2021] SASC 134
Single Judge (Magistrates) Appeal
STANLEY J:

This is an appeal against sentence. It gives rise to a simple issue. That issue is whether the sentencing magistrate (magistrate) erred in failing to reduce the appellant’s sentence for time spent in custody before sentence was imposed. That in turn depends on whether a connection existed between two discrete periods the appellant spent in custody and the offending for which he was sentenced on 13 August 2021. Those two periods are 13 June 2020 to 15 March 2021 and 15 March 2021 to 10 May 2021.
Factual background
The factual background is complex but important to the disposition of the appeal. On 20 April 2020 the appellant assaulted the victim Keith Paul Kiwi Drake and thereby caused him harm. The…

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 SLAVIN-MOLLOY

Details

AGLC: R v SLAVIN-MOLLOY [2021] SASC 134
Case: [2021] SASC 134
Decision Date: 25 November 2021

CaseChat Overview and Summary

The case of R v Slavin-Molloy is an appeal against sentence, raising a straightforward issue concerning whether the sentencing magistrate erred in not reducing the appellant's sentence for the time he spent in custody before the sentence was imposed. This issue hinges on whether there was a connection between two distinct periods the appellant spent in custody and the offence for which he was sentenced on 13 August 2021. The two periods are 13 June 2020 to 15 March 2021 and 15 March 2021 to 10 May 2021. The facts are intricate but crucial for the appeal's resolution. The appellant assaulted an individual, causing harm, on 20 April 2020, and was later arrested and remanded in custody for unrelated offences on 13 June 2020. On 22 February 2021, he was charged with assault causing harm, and on 15 March 2021, he appeared in court for the first time on this file. He was subsequently sentenced on 10 May 2021 for unrelated offences and, on 9 June 2021, pleaded guilty to the subject offence, receiving a sentence of 16 months imprisonment, reduced from 24 months due to his guilty plea. The appellant contends that the magistrate erred by not reducing the sentence for the time spent in custody.

The court considered the appellant's argument that the magistrate failed to reduce his sentence for time spent in custody, which was not directly connected to the subject offence. The court noted that the magistrate had indeed considered the appellant's time in custody but concluded that no basis existed to enliven the discretion under s 44(2). The magistrate found that there was no connection between the time in custody and the subject offence, and thus no basis to reduce the sentence further. The court also pointed out that the period between 15 March 2021 and 10 May 2021 had already been taken into account and deducted from the sentence imposed by the magistrate on 10 May 2021. The court concluded that there was no error in the sentencing process, and the appeal should be dismissed.

The court dismissed the appeal, holding that there was no error in the sentencing process. The magistrate had considered the appellant's time in custody but found no connection between the time in custody and the subject offence, thereby concluding that there was no basis to reduce the sentence further. The court's reasoning was that the magistrate had correctly applied the law and considered the relevant factors, and thus the appeal should be dismissed.

Orders

Orders of the court

Held, per Stanley J:

1. There was no error in the sentencing process;

2. The appeal should be dismissed.

Background

Background to the litigation

This is an appeal against sentence. It gives rise to a simple issue. That issue is whether the sentencing magistrate (magistrate) erred in failing to reduce the appellant’s sentence for time spent in custody before sentence was imposed. That in turn depends on whether a connection existed between two discrete periods the appellant spent in custody and the offending for which he was sentenced on 13 August 2021. Those two periods are 13 June 2020 to 15 March 2021 and 15 March 2021 to 10 May 2021. Factual background The factual background is complex but important to the disposition of the appeal. On 20 April 2020 the appellant assaulted the victim Keith Paul Kiwi Drake and thereby caused him harm. The victim was unknown to him, and the appellant was not immediately identified. This is the offence which resulted in the sentence the subject of this appeal. On 13 June 2020, and prior to being arrested for the subject offending, the appellant was arrested and remanded in custody for unrelated alleged offences of unlawful detention, aggravated causing harm with intent, aggravated assault, aggravated threatening to cause harm and false imprisonment. The appellant was refused bail in relation to these allegations, which remain contested. As a result of the subject offending on 20 April 2020, South Australian Police filed an information and summons in the Elizabeth Registry of the Magistrates Court of South Australia on 22 February 2021 charging the appellant with one count of assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is imprisonment for three years. The appellant appeared for the first time on this file before the Elizabeth Magistrates Court on 15 March 2021. On 10 May 2021 the appellant was sentenced to a period of 10 months imprisonment on a third file for unrelated offences of four counts of driving under disqualification or suspension, one count of possessing a prescription drug, one count of carrying an offensive weapon and two counts of possessing a prohibited weapon and unlawful possession. On 9 June 2021 the appellant pleaded guilty to the subject offending. By virtue of his plea the appellant was entitled to a discount of up to 30 percent on his sentence.[1][1] Sentencing Act 2017 (SA) s 39(2)(b). The appellant was ultimately sentenced on 13 August 2021. The appellant was sentenced to imprisonment for 16 months. This was reduced from a starting point of 24 months on account of the appellant’s guilty plea. The sentence was made cumulative on the sentence of imprisonment for 10 months that the appellant was already serving, having commenced on 10 May 2021. This gave a total head sentence of 26 months imprisonment. The magistrate set a non-parole period of 16 months imprisonment which was backdated to 10 May 2021. The magistrate declined to give a further reduction for time spent in custody. The appellant contends that the magistrate erred by not reducing the sentence of imprisonment for time spent in custody.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

However this period of time between 15 March 2021 and 10 May 2021 has already been taken into account and deducted from the sentence imposed by the magistrate who sentenced the appellant on 10 May 2021.[14] [14] See paragraph 5.6 of the affidavit of Alexander William Rice dated 1 October 2021.Conclusion In the circumstances there has been no error in the sentencing process and the appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Notwithstanding this, the magistrate did not fail to consider this period of time in custody entirely in imposing sentence. The magistrate did turn his mind to the fact that the appellant had spent this time in custody. It is clear from the discussion between the appellant’s counsel and the magistrate at the conclusion of the sentencing remarks that the magistrate considered the extent of any connection between the time in custody and the subject offending, satisfied himself that there was no such connection, and concluded that a basis to enliven the discretion in s 44(2) was not established. The second period in custody: consideration The appellant further spent time in custody between 15 March 2021 and 10 May 2021, when he commenced serving his sentence. This is a further period of 57 days, or one month and 27 days. This period of 57 days falls into a different category to the 276 days spent in custody prior to 15 March 2021 and should necessarily be dealt with differently. At the time of the appellant’s first hearing on 15 March 2021 for the subject offending, no application for bail was made on the subject file. If any such application had been made it would most likely have been refused given the appellant’s custody status in relation to his other files. In this respect, it is conceded by the respondent that it is arguable that there was a close connection between the time spent in custody between 15 March 2021 and 10 May 2021 and the subject offending.[13] The appellant was effectively in custody on both files, as well as the third file for which he was sentenced on 10 May 2021. [13] R v Bol [2017] SASCFC 148. However this period of time between 15 March 2021 and 10 May 2021 has already been taken into account and deducted from the sentence imposed by the magistrate who sentenced the appellant on 10 May 2021.[14] [14] See paragraph 5.6 of the affidavit of Alexander William Rice dated 1 October 2021.Conclusion In the circumstances there has been no error in the sentencing process and the appeal should be dismissed.