R v Wilson
[2016] SASCFC 139
•20 December 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILSON
[2016] SASCFC 139
Judgment of The Honourable Chief Justice Kourakis
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Hinton)
20 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PROCEDURE - JURISDICTION - GENERALLY
CRIMINAL LAW - PROCEDURE - JURISDICTION - SUPREME COURTS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE - GENERAL PRINCIPLES
Appeal against sentence.
On 11 February 2016 the appellant was involved in a fight outside a hotel. The appellant refused five or more requests by the police to provide his personal details. The police arrested the appellant for the offence of refusing to provide his personal details. During the course of the arrest the appellant dropped to the ground, wrapping his legs around railing and then an officer’s leg; this conduct gave rise to a charge of resisting arrest. Later, while the appellant was detained, he spat on the lower trouser legs of two police officers. This conduct was the subject of two charges of assaulting police (herein the street offending).
At the time of the street offending, the appellant was on a good behaviour bond which he entered into in October 2014. The October 2014 bond was for a period of two years and suspended a sentence of six months of imprisonment. Prior to the street offending taking place, an application to enforce the October 2014 bond was made in the District Court.
The appellant appeared once in the Magistrates Court in relation to the street offending yet no plea was entered. The Magistrates Court file was administratively transferred to be heard with the application to enforce the bond in the District Court.
In the District Court, the Chief Judge imposed an overall sentence of 12 months imprisonment for the street offending. The suspension of the October 2014 sentence was revoked and the appellant ordered to serve six months cumulatively on the 12 months. The Chief Judge set a non-parole period of 10 months. The appellant appeals against that sentence as manifestly excessive.
The appellant subsequently appeared in the Magistrates Court for a new offence of assault causing harm. The appellant plead guilty to that offence, breaching a bond entered into in May 2015 (which suspended a sentence of 5 months imprisonment). For the new offence, the Magistrate imposed a sentence of 10 months imprisonment. The previously suspended sentence was revoked and the Magistrate ordered that the five months imprisonment be served cumulatively on the 10 months imprisonment. The combined sentence of 15 months was ordered to be served cumulatively on the 18 months imprisonment imposed by the Chief Judge. The Magistrate imposed a head sentence of 2 years and 9 months with a non-parole period of 18 months.
The issues to be determined on appeal are:
1. Was the sentence imposed by the Chief Judge manifestly excessive;
2. What jurisdiction was the Chief Judge exercising when he sentenced the appellant for the street offending (originally heard in the Magistrates Court) and the breach of the October 2014 bond, as no plea was entered and the file was not remanded to the District Court. Accordingly, what jurisdiction does the Court of Criminal Appeal exercise in hearing the appeal; and
3. If the head sentences imposed are manifestly excessive, what power does the Court of Criminal Appeal have to impose a new non-parole period on any new head sentence considering the newer sentences imposed by the Magistrate.
Held per Kourakis CJ (Nicholson and Hinton JJ agreeing) allowing the appeal:
1. The sentence imposed by the Chief Judge for the street offending was manifestly excessive.
2. Accounting for the appellant’s guilty pleas, the street offending warrants a sentence of seven weeks, having regard to the time spent on remand in custody and on home detention bail.
3. The Chief Judge was exercising the jurisdiction of the Magistrates Court. The appellant was not remanded from the Magistrates Court to the District Court pursuant to s 57(4a)(b) of the Criminal Law Sentencing Act 1988 (SA) as he had not plead guilty. The Chief Judge was exercising the jurisdiction of a Magistrate conferred by s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA).
4. The Court of Criminal Appeal allows the appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA).
5. The head sentences imposed by the Magistrate will commence sooner than anticipated by virtue of the new seven week sentence. The power of appellate courts to vary the judgment in ‘related proceedings’ conferred by s 42(5)(a) of the Magistrates Court Act 1991 (SA) should be construed widely. In this case, that extends to the sentences imposed by the Magistrate.
6. The appellant is to serve the following head sentences:
a. Revocation of the October 2014 suspended sentence of six months;
b. Sentences of imprisonment for the street offending of seven weeks;
c. Revocation of the May 2015 suspended sentence of five months; and
d. A sentence of 10 months for the 2016 assault causing harm offences.
The total of those sentences is 21 months and seven weeks. An overall non-parole period of 14 months is fixed.
Criminal Law Consolidation Act 1395 (SA) s 352; Criminal Law Sentencing Act 1988 (SA) ss 18A, 57(4a), 58; District Court Act 1991 (SA) s 43; Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) s 5; Magistrates Act 1988 (SA) ss 4, 22; Magistrates Court Act 1991 (SA) s 42; Summary Offences Act 1953 (SA) ss 6, 74A; Summary Procedure Act 1921 (SA) ss 69, 70, referred to.
R v Tyler [2016] SASCFC 7, distinguished.
R v Allen (2002) 81 SASR 434; Tarasenko v Boylan (1992) 58 SASR 587; R v King (2008) 179 A Crim R 600; Burgoyne v Dixon (2005) 150 A Crim R 1, discussed.
Betts v The Queen [2016] HCA 25; Police v Bicanin [2011] SASC 108; Police v Moraldo [2005] SASC 479; R v Kentwell (2014) 252 CLR 601, considered.
R v WILSON
[2016] SASCFC 139Court of Criminal Appeal: Kourakis CJ, Nicholson and Hinton JJ
KOURAKIS CJ: On 11 February 2016 the appellant was involved in a fight at the Rosemont Hotel. The police were called and located the appellant nearby on Hindley Street. He appeared to be very intoxicated. Reasonably suspecting that he had committed an assault, police asked him on five or more occasions to give his personal details but he refused. The police then arrested him for the offence of refusing to provide his personal details. The appellant resisted the arrest by struggling with the police and dropping to the ground to wrap his legs around a piece of railing and then a police officer’s leg. That conduct was the subject of a charge of resist arrest.
After the appellant was conveyed to the City Watchhouse he was placed in a padded cell where he continued to struggle with the police. Police attempted to physically restrain him. Whilst on the floor of the cell, he spat and his spittle hit the lower trouser legs of the police officers. The spitting constituted two offences of assaulting police. I will refer to the offences above collectively as the February 2016 street offences.
The maximum penalty of imprisonment for the offence of refusing to provide personal details to a police officer contrary to s 74A(3)(a) of the Summary Offences Act 1953 (SA) (Summary Offences Act) is three months imprisonment. The maximum penalty of imprisonment for the offence of resisting arrest contrary to s 6(2) of the Summary Offences Act is six months imprisonment. The maximum penalty of imprisonment for an offence of assaulting a police officer in the execution of his duty contrary to s 6(1) of the Summary Offences Act is two years imprisonment.
The appellant first appeared in the Magistrates Court on the February 2016 street offence charges on 12 February 2016. He was remanded in custody to 18 February 2016 and a bail enquiry report was ordered. On 18 February 2016 the appellant was granted bail to appear on 11 March 2016. However, on about 9 March 2016 the file was transferred to the District Court to be heard together with an application to enforce a bond into which the appellant had entered on 3 October 2014 in the District Court (the October 2014 bond). The date for appearance in the Magistrates Court was vacated.
The October 2014 bond was entered into after the appellant was sentenced to six months imprisonment for an offence of assault. The sentence was suspended on the appellant entering into the good behaviour bond for two years. On the same occasion, the Judge excused a consequential breach of an earlier bond imposed in the District Court on 1 October 2010. The 2010 bond was entered into on the suspension of a sentence of two years and three months with a non-parole period of one year and two months imposed for offences of trafficking and possession of a controlled drug.
An application to enforce the October 2014 bond was brought in the District Court on 20 May 2015 for Mr Wilson’s breach of a bond condition to report and undergo drug testing (the breach application).
On 4 April 2016 the appellant pleaded guilty to the February 2016 street offence charges before the Chief Judge. These matters were adjourned so that a fresh application to enforce the October 2014 bond could be made. On 6 April 2016 an application was filed seeking enforcement of the October 2014 bond based on the commission of the February 2016 street offences.
Sentencing submissions were made before the Chief Judge on 19 April and the appellant was remanded in custody for sentence until 30 May. On 30 May 2016 an overall sentence of 12 months was imposed for the February 2016 street offences. The suspension of the October 2014 sentence was revoked and the appellant ordered to serve six months imprisonment. The sentence of six months was cumulative on the sentence of 12 months. A non-parole period of 10 months was fixed for the total sentence of 18 months. The head sentence of 18 months and the non-parole period were ordered to commence on 19 April 2016.
The appellant appeals on the ground that the sentence was manifestly excessive. I would uphold the appeal on that ground. The conduct constituting the offence of resisting arrest was, by and large, passive. Assaults by spitting, although rarely causing any significant physical injury are treated seriously because assaults of that kind are disgusting and engender much anxiety about contracting disease. General deterrence is therefore relatively important. However, in this case the appellant spat whilst he was on the ground and the spittle landed on the trouser legs of the police officers. It was not alleged that he was attempting to spit at their faces or that there was any real likelihood that the spittle might have landed there. Nor was there any evidence that the police officers were any more anxious or upset by the assault than one would ordinarily expect.
The Penalty
A term of imprisonment which is half of the maximum penalty for the offence of assaulting police is unreasonably severe when one appreciates that the overall circumstances of the offending in this case called for a degree of concurrency.
I have concluded that the February 2016 street offences warrant a sentence of imprisonment of seven weeks, particularly having regard to the time which the appellant spent on remand in custody immediately after the offending and the fact that he was released on home detention bail. I indicate that I have arrived at that sentence from starting points of:
·one week for failing to provide personal identifying information to the police;
·three weeks for the resist arrest offence to be served concurrently with the first sentence; and
·eight weeks, concurrent, for the offences of assault police to commence three weeks after the commencement of the first sentence.
Reducing the total of those starting points for the appellant’s guilty pleas, I would fix a single sentence of seven weeks utilising s 18A of the Criminal Law Sentencing Act 1988 (SA) (CLSA).
Jurisdiction
A more difficult question arises as to what jurisdiction the Chief Judge was exercising when he sentenced the appellant and therefore as to the particular appellate jurisdiction pursuant to which this Court can interfere. The appellant covered the field of possible appeals by filing notices of appeal pursuant to s 352 of the Criminal Law Consolidation Act 1935 (SA) (CLCA), s 43 of the District Court Act 1991 (SA) (District Court Act) and s 42 of the Magistrates Court Act 1991 (SA) (Magistrates Court Act).
In this case the Chief Judge assumed jurisdiction over the summary court matters before a Magistrate had exercised any powers pursuant to s 57(4a) of the CLSA to sentence the appellant on the February 2016 street offences matters or to remand the defendant on those matters to the District Court. In those circumstances and for the reasons which follow, I would hold that the Chief Judge was exercising the jurisdiction of the Magistrates Court.
Section 57(4a) of the CLSA provides:
57(4a)If a probationer is found guilty of an offence by a court of an inferior jurisdiction to that of the probative court, being an offence committed during the term of the bond, the court of an inferior jurisdiction must –
(a)sentence the probationer for the offence and remand him or her to the probative court to be dealt with for breach of the conditions of the bond; or
(b)remand the probationer to the probative court to be sentenced for the offence and dealt with for breach of the conditions of the bond.
As I have just observed, the Magistrates Court did not remand the appellant to the District Court pursuant to s 57(4a) of the CLSA to be sentenced for the February 2016 street offences and to be dealt with for the October 2014 bond. No Magistrate turned his or her mind to, or exercised, that power. Rather by administrative processes in the registries of the Magistrates and District Courts, the particular details of which are not revealed in the materials before us, the Magistrates Court was informed that a District Court Judge wished to exercise his or her jurisdiction over those matters whilst dealing with the application to enforce the October 2014 bond which had been brought in the District Court.
Accordingly the circumstances of this matter differ in a legally significant respect from the circumstances of the matters considered by this Court in R v Allen.[1]In Allen the Magistrates Court did remand the defendant to appear in the District Court for sentence, on certain criminal proceedings which had been brought on information and complaint in the Magistrates Court for offences committed during the term of a District Court bond. Indeed, the defendant had pleaded guilty to those offences in the Magistrates Court. The defendant in Allen appealed against the severity of the sentences imposed in the District Court. The jurisdictional question before this Court in Allen was therefore the nature of the jurisdiction exercised by the District Court in sentencing for offences on which a probationer had been remanded to that Court for sentence pursuant to s 57(4a) of the CLSA.
[1] (2002) 81 SASR 434.
Lander J (with whom Martin J agreed) drew on the analogy of the sentencing of offenders committed to the District Court for sentence and concluded:[2]
[60]In my opinion the practice of the District Court is to proceed to sentence on what would have been the equivalent of the information which was filed in the Magistrates' Court. In my opinion it can be said when the District Court judge exercises power under s 57(4a) and convicts a person for an offence which has been referred under that section the person has been convicted on information. In my opinion, Pt 4 of the Criminal Law Consolidation Act applies and the appellant is entitled to seek leave to appeal from the sentences imposed by the District Court judge in respect of all matters except for the 22 May offence. As I have already said in relation to that matter, the District Court judge was exercising the jurisdiction of a magistrate and an appeal lies from his decision in that respect directly to a single judge.
[2] (2002) 81 SASR 434 at [60].
On the other hand Besanko J held that the District Court Judge was exercising the jurisdiction of the Magistrates Court:[3]
[100]In my opinion, s 57(4a) is not the source of the District Court judge's power or jurisdiction to sentence for offences committed during the term of the bond and which have been the subject of proceedings instituted in the Magistrates' Court. The sources of that power are s 22 of the Magistrates Act and s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act. I have reached that conclusion for two reasons. First, if it was the intention of Parliament to confer jurisdiction on the District Court, or to use the words of King CJ, “to enable a proceeding to be removed from the Magistrates' Court into the District Court”, then one would have expected to see much more direct language than that contained in s 57(4a). Secondly, it is one thing to say that a magistrate may determine whether he or she should exercise the power to sentence a defendant in relation to various offences or send the matter to the District Court so that a District Court judge can exercise the magistrate's powers. It is quite another thing to say that the magistrate may decide whether a proceeding becomes a District Court proceeding, or, put another way, is removed from the Magistrates' Court to the District Court.
[3] (2002) 81 SASR 434 at [100].
In my respectful opinion the reasoning of Besanko J is persuasive even though s 57(4a) of the CLSA speaks of a remand to the ‘probative court’ and not to a ‘judge of the probative court’.
Importantly, the reasoning of the majority leads to the peculiar result that in those matters referred to the District Court pursuant to s 57(4a) of the CLSA, the determination of the criminal proceeding will be split between two courts. The determination of guilt will be an order of the Magistrates Court, and in the records of the Magistrates Court. However that record will be incomplete in that no penalty will have been imposed on that conviction by the Magistrates Court. That result is surprising because the power of a court to sentence has traditionally been dependant on an order of conviction being made. On the other hand, if the holding of the majority in Allen is correct, the records of the District Court will show the imposition of a sentence not anchored to, or authorised by, a finding of guilt or conviction in that court.
The oddity of this result is even more apparent when it is appreciated that only when a ‘probationer is found guilty of an offence’ can he or she be remanded to the District Court. If a probationer pleads not guilty to a summary offence, the trial will be heard in the Magistrates Court. At the conclusion of that trial, s 69 of the Summary Procedure Act 1921 (SA) (the SPA)[4] provides that the Court ‘shall consider the whole matter and determine the same’. The finding of guilt is therefore a determination of the complaint. Section 69 of the SPA goes on to provide that the Court may convict, make an order against the defendant, or dismiss the complaint as the case may require. Section 70 of the SPA requires that any conviction be minuted.[5] For the purposes of ss 69 and 70 of the SPA, the word conviction includes the sentence.[6]
[4] Section 69 of the Summary Procedure Act 1921 (SA) provides:
69 - After hearing the parties court to convict or dismiss
When the parties and their evidence have been heard, the court shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint, as the case may require: Provided that the court may, at any time before the matter has been finally determined, without determining the same permit the complaint to be withdrawn, upon such terms (if any) as it thinks fit.
[5] Section 70 of the Summary Procedure Act 1921 (SA) provides:
70 - Conviction to be minuted
(1)When the court convicts or makes an order against the defendant a minute or memorandum of the conviction or order shall then be made.
…
[6] Summary Procedure of Justices, 4th Edition, pp92-95, 100.
If a remand pursuant to s 57(4a) of the CLSA has the effect that the sentence is imposed by the District Court it can only do so by impliedly abrogating the duty imposed on the Magistrates Court by s 69 of the SPA. Moreover, if the judge of the District Court is exercising a jurisdiction conferred by s 57(4a) of the CLSA and not exercising the jurisdiction of a Magistrate, that sentencing power is exercised on the basis of a conviction recorded in another court.
As Besanko J observed in Allen, the language of s 57(4a) of the CLSA is not apt to confer jurisdiction. If it does, it can only be by implication. Rather it appears to assume the existence of jurisdiction found elsewhere. Well before the enactment of the CLSA, District Court judges were given the jurisdiction of magistrates. Section 22 of the Magistrates Act 1988 (SA) (the Magistrates Act) provides that a judge of the Supreme Court, a master of the Supreme Court or a District Court judge ‘may exercise the jurisdiction, powers or functions of a magistrate’.
A similar power was subsequently conferred by the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) (Judicial Administration Act) which provides:
5 - Power of judicial officer to act in co-ordinate and less senior offices
(1) Subject to subsection (1a) and (2), a judicial officer holding or acting in a particular judicial office may exercise, in addition to the jurisdiction and powers attaching to that office, the jurisdiction and powers attaching to any other judicial office of a co-ordinate or lesser level of seniority.
…
(4) A judicial officer who has been appointed to hold or act in a judicial office in a particular court must obtain the consent of the judicial head of that court before undertaking judicial work in another court (but such a consent is not required where the occasion to exercise the jurisdiction and powers of some other court arises incidentally in some matter before the court to which the judicial officer was appointed).
In Tarasenko v Boylan[7] King CJ explained that the power conferred by s 22 allowed Magistrates Court files be administratively transferred to the District Court to be dealt together with other matters committed to it. The practice overcomes the commonly encountered problem of either Magistrates or District Court Judges sentencing ignorant of what their counter-part is doing. For example Magistrates sentencing on summary matters without knowing the sentence which the District Court might impose on major indictable offences, or District Court Judges not knowing the sentence which a Magistrate might impose on the accused’s summary offences. King CJ spoke of the manifest advantage to the administration of justice in having an offender dealt with by the same judicial officer for all offences. King CJ explained that the administrative practice had been sanctioned by the Chief Justice of the Supreme Court, the Chief Judge of the District Court and the Chief Magistrate and implemented administratively by directions given by the Chief Magistrate authorising the transfer of files to the District Court.
[7] (1992) 58 SASR 587 at 588.
Administrative directions of the kind mentioned by King CJ are necessary only with respect to the clerical functions of physically transporting the file from one registry to another so that the assumption of jurisdiction pursuant to s 22 of the Magistrates Act is efficacious. The Chief Magistrate is responsible for the administration of the Magistrates Court pursuant to s 11 of the Magistrates Court Act and responsible for the administration of the magistracy pursuant to s 7 of the Magistrates Act. However, the Chief Magistrate is not responsible for, and does not have power over, the assumption of jurisdiction by judges of the Supreme Court or the District Court pursuant to s 22 of the Magistrates Act or s 5 of the Judicial Administration Act.
As King CJ explained in Tarasenko v Boylan[8] the Magistrates Court Act does not prescribe how a Magistrates Court is constituted. Section 7A of the Magistrates Act provides only that the Magistrates Court, when sitting to adjudicate on any matter, must be constituted of a Magistrate. As King CJ observed, decisions as to which magistrates sit in the Magistrates Court from time to time, and as to the matters which are listed before them, are for the Chief Magistrate exercising his or her powers pursuant to s 8 of the Magistrates Act:
[8] (1992) 58 SASR 587 at 589.
8 - Magistrates responsible to Chief Magistrate
Magistrates are responsible to the Chief Magistrate in relation to administrative matters and, in particular, are subject to direction by the Chief Magistrate as to the duties to be performed and the times and places at which those duties are to be performed.
As King CJ also pointed out, those provisions must be read subject to s 22 of the Magistrates Act and the Judicial Administration Act:[9]
I am unable to agree with Judge Lunn's view that a District Court judge is not authorised to sit as the Magistrates Court. I think that the jurisdiction powers and functions of a magistrate, which a judge is authorised to exercise by s 22 of the Magistrates Act, include the totality of a magistrate's jurisdiction powers or functions, from whatever source derived, and include his jurisdiction powers and functions when sitting as the Magistrates Court. The distinction sought to be made between the jurisdiction power or functions of a magistrate as such and his jurisdiction powers or functions when sitting as the Magistrates Court, is unduly subtle and, in my opinion, not warranted by the section.
…
I am of opinion therefore that a judge of the District Court is authorised to hear and determine charges of summary offences in proceedings which have been instituted in the Magistrates Court and that there is no occasion to discontinue the practice which has hitherto been followed. It is not necessary for the District Court judge to sit as the Magistrates Court. He is entitled to exercise the jurisdiction as a judge of the District Court. The proceeding is not, of course, in any sense removed from the Magistrates Court into the District Court, but is dealt with by the District Court judge pursuant to the special powers conferred by s 22 of the Magistrates Act and s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act. It remains a “criminal action” within the meaning of s 3 of the Magistrates Court Act and an appeal would therefore be governed by s 42 of the Magistrates Court Act.
[9] (1992) 58 SASR 587 at 590-591.
It is not necessary on this appeal to reconsider the decision in Allen despite the doubts that I have expressed. In this case there was no remand of the appellant by the Magistrates Court to the District Court pursuant to s 57(4a)(b) of the CLSA and there could not be unless, and until, he had pleaded guilty. Accordingly, even if the majority in Allen were right to hold that that section confers jurisdiction on the District Court, as such, the enlivening condition, a remand of a defendant who has pleaded guilty, was not satisfied in this case. The only jurisdiction which the Chief Judge could have exercised is that conferred by s 22 of the Magistrates Act and s 5 of the Judicial Administration Act. I would therefore allow the appeal exercising the power conferred by s 42 of the Magistrates Court Act.
A final problem
After the imposition of the sentence before the Chief Judge, the appellant came before a Magistrate at the Elizabeth Magistrates Court on 23 August 2016. At that appearance he plead guilty to a count of assault causing harm (the 2016 assault causing harm offence). The assault was committed again in the context of an argument in a hotel in September 2015. The appellant struck his victim on the head with a weapon (that was accepted to be a wooden object) and caused significant injury. The blow caused a deep and jaggered laceration to the side and towards the back of the victim’s head requiring insertion of four staples. The victim also suffered concussion.
By committing the offence, the appellant also breached a bond entered into on 15 May 2015 in the Holden Hill Magistrates Court on conviction for offences of aggravated assault against a police officer, basic assault, damaging property and resisting a police officer in the execution of his duty (the May 2015 bond) committed on 22 November 2013. When the appellant entered the May 2015 bond a single sentence of five months imprisonment was imposed but suspended.
For the 2016 assault causing harm offence, the Magistrate imposed a sentence of 10 months. That 10 months was to be served cumulatively upon the sentence of imprisonment of five months which came into effect as the suspension of the breach of the May 2015 bond was revoked as well as cumulatively upon the sentence of 18 months imposed by the Chief Judge. The Magistrate fixed a non-parole period of 18 months for the new sentence in its totality (2 years and 9 months).
The head sentences imposed by the Magistrate will come into effect much earlier than anticipated by reason of the sentence substituted by this Court for the sentences imposed by the Chief Judge. However a question arises as to the power of this Court to fix a new overall non-parole period. Section 42 of the Magistrates Court Act provides:
42—Appeals
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
…
(2)The appeal lies—
…
(b) in any other case—to the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the appeal for hearing and determination by the Full Court).
…
(5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a) it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b) it may remit the case for hearing or further hearing before the Magistrates Court;
(c) it may make any other order (including, subject to subsection (5a), an order for costs) that may be necessary or desirable in the circumstances.
…
The power conferred by s 42(5) should be construed widely. It is not necessary in this appeal to finally determine its meters and bounds nor the precise meaning of the word ‘related proceedings’. However it is clear enough that when an order or sentence subject to appeal is one of a series of interdependent sentences and orders, the proceeding in which those orders are made are ‘related proceedings’.
Having regard to the purpose of s 42 of the Magistrates Court Act and the commonly encountered problem of sentences being imposed by different judicial officers at different times, there is every reason to construe the word ‘proceeding’ as relating to a proceeding in a different action. Indeed, it is doubtful that the phrase ‘related proceedings’ would be required at all if it were limited to other orders made in the same action.
That is sufficient to dispose of this matter but I make the following brief additional observations.
I am not persuaded that the approach taken in R v Tyler[10] is directly applicable when a non-parole period is fixed or extended in a different action to the one in which the sentence appealed was imposed. In R v Tyler the Court of Criminal Appeal held that one of several head sentences imposed on the same occasion was manifestly excessive and imposed a lesser sentence. A question arose as to whether the Court could fix a new overall non-parole period when the appellant had not appealed against any other of the sentences. I held that the Court could:
[47]… On setting aside the manifestly excessive sentence and imposing a lesser one, the Court of Criminal Appeal must fix a new non-parole period. The fixing of a new non-parole period is not, in any real sense, an interference with the other sentences. The non‑parole period is a statutory sentencing order attaching to all of the convictions on which the sentences to which it applies are fixed.
[10] R v Tyler [2016] SASCFC 7.
However, in this case the existing non-parole period fixed in the Elizabeth Magistrates Court, albeit an order attaching to all of the sentences, was not imposed in the same action as this appeal. For that reason it is necessary to have recourse to the ‘related proceeding’ limb of s 42(5) of the Magistrates Court Act.
I also observe that an appeal brought pursuant to s 42 of the Magistrates Court Act is an appeal by way of rehearing. The Supreme Court may make any order which might properly have been made in the Magistrates Court but it does so with respect to both the law as it stands at the time that the appeal judgment is given and with respect to evidential material including additional evidential material, which is properly brought before the Supreme Court. Accordingly, in substituting a sentence for the sentence of the Chief Judge on the February 2016 street offences it is necessary to sentence on the basis that the appellant is, on the quashing of those sentences, serving the sentences of imprisonment imposed by Magistrate Alexandrides.[11]
[11] R v Kentwell (2014) 252 CLR 601 at [43]; Betts v The Queen [2016] HCA 25.
This Court cannot therefore suspend the sentence it would impose for the February 2016 street offence pursuant to s 38 of the CLSA because the defendant is serving, or is about to serve a sentence of imprisonment. Nor can this Court partially suspend the sentence it imposes because the appellant is subject to a sentence of more than 12 months.
Finally, I observe that it is doubtful that a suspended sentence once revoked can be suspended either in whole or in part. Section 58(1)(d) of the CLSA provides that upon being satisfied of a breach of bond the Court ‘must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect’. If the matters in subs (3) are not satisfied, it is difficult to see how a sentence of imprisonment can be carried into effect other than by serving it in prison in full.[12]
[12] Police v Bicanin [2011] SASC 108 at [9] per Duggan J; Police v Moraldo [2005] SASC 479.
Be all that as it may, having regard to the nature of the offences of which the appellant has been convicted, his history of breaching bonds and the hotel cause harm offence, it would not be appropriate to exercise any of those discretions favourably to the appellant.
Conclusion
I would set aside the sentence imposed on the summary offences by the Chief Judge. I would impose instead a single sentence of seven weeks pursuant to s 18A of the CLSA. The head sentences which the appellant is therefore liable to serve cumulatively are:
·revocation of October 2014 suspended sentence of six months;
·sentences of imprisonment for the February 2016 street offences of seven weeks;
·revocation of the May 2015 suspended sentence of five months; and
·sentence of imprisonment of 10 months for the 2016 assault causing harm offence.
The total of those sentences is 21 months and seven weeks. I would fix an overall non-parole period of 14 months to have commenced on 19 April 2016.
NICHOLSON J: I agree with the reasons of and orders proposed by the Chief Justice.
HINTON J: I agree with the Chief Justice that the sentence imposed for the February 2016 street offences was manifestly excessive.
I agree that spitting is disgusting and engenders anxiety. It is also an act that is often intended to be intensely offensive to authority, humiliating, demeaning and degrading.
In R v King de Jersey CJ said:[13]
One begins with the proposition that those who treat a police officer in this way [spitting in the face] should ordinarily expect to be imprisoned, meaning actual imprisonment. Police officers carry out duties which are usually onerous and often dangerous. It is abhorrent that a police officer responsibly going about his or her business be subject to the indignity and risk of being spat upon. The risk in contemporary society relates obviously to communicable disease. Related to the indignity is the display of contempt for civil authority which will often be involved in these incidents. An appropriate level of deterrence will in such cases usually be secured only through actual imprisonment of the offender.
[13] (2008) 179 A Crim R 600 at [6].
And in Burgoyne v Dixon Thomas J said:[14]
The act of spitting in an officer’s face is humiliating and degrading. It can have far more devastating consequences and be more difficult to fend off than the more common form of assault which involves kicks or punches to the body. There is a potential risk of contracting communicable diseases.
[14] (2004) 150 A Crim R 1 at [25].
I appreciate that here the appellant did not spit in the face of the police officers and that his offending is of a level of seriousness less than that in either of King or Burgoyne v Dixon. Nonetheless, the sentiments expressed by de Jersey CJ and Thomas J largely remain apposite.
I agree that a sentence of seven weeks imprisonment for the February 2016 street offences should be substituted for the reasons given by the Chief Justice.
I also agree that the power exercised by the Chief Judge in sentencing Mr Wilson for the 2016 street offences was that vested in him as a judge of the District Court by s 22 of the Magistrates Act 1983 (SA) and s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA). The result is that the Chief Judge in sentencing the appellant for the February 2016 street offences was exercising the powers of a Magistrate in a “criminal action” within the meaning of s 3 of the Magistrates Court Act 1991 (SA).[15] Accordingly this appeal against the sentence imposed for the February 2016 street offences is governed by s 42 of the Magistrates Court Act 1991 (SA).
[15] Tarasenko v Boylan (1992) 58 SASR 587 at 591 (King CJ).
I express no opinion as to whether the reasoning of the majority in R v Allen is correct.[16] It is unnecessary to do so because s 57(4a) of the Criminal Law (Sentencing) Act 1988 (SA) was not engaged in this case.
[16] (2002) 81 SASR 434.
Lastly, I agree that resort may be had by this Court to the power contained in s 42(5) of the Magistrates Court Act 1991 (SA) to set a fresh non-parole period including for offences that are not subject to appeal but in relation to which the setting of a non-parole period has been determined taking into account the sentence subject of appeal where the appeal is allowed and a fresh sentence and non-parole period imposed.
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