RADIS v Police - [2017] SASC 166

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
RADIS v POLICE
[2017] SASC 166
Judgment of The Honourable Justice Nicholson (ex tempore)
9 November 2017
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
Appeal against revocation of home detention order and further order requiring the remaining sentence of imprisonment be served in custody.
The appellant was sentenced for multiple offences in the Magistrates Court and a term of imprisonment was ordered which was to be served by way of home detention.
Following the return of a urinalysis that was positive for methamphetamine and amphetamines, the respondent pressed an application in the Magistrates Court seeking orders for the revocation of the home detention order and that the sentence be served in custody. The appellant (who was self-represented) admitted the breach and the Magistrate made the orders as sought.
The respondent conceded that the appeal should be allowed on the basis that the appellant was not afforded an opportunity to obtain legal advice or to prepare submissions by way of mitigation.
Held:
1. Appeal allowed.
2. The Magistrate's orders are set aside.
3. The matter is remitted to the Magistrates Court for rehearing and re-determination according to law by a different magistrate.
Criminal Law (Sentencing) Act 1988 (SA) s 33BD, referred to.
Scott v Police [2015] SASC 103, considered.

RADIS v POLICE
[2017] SASC 166
Magistrates Appeal: Criminal
NICHOLSON J.

On 6 February 2017, the appellant was sentenced in the Magistrates Court for multiple offences to a term of imprisonment for 17 months and nine days with a non-parole period of nine months. However, it was ordered that the sentence was to be served by way of home detention to commence 6 February 2017.
On 7 April 2017, the appellant returned a urinalysis that was positive for methamphetamine and with respect to which she received a warning and was referred to counselling. On 31 May 2017, the appellant again returned a urinalysis that was positive for methamphetamine and amphetamines.
On 7 June 2017, an application was filed by the police in the Port Adelaide Magistrates Court asserting a breach of the home detention conditions and seeking an order that the court revoke the home detention order and that the sentence of imprisonment be served in custody in accordance with section 33BD(1) of the Criminal Law (Sentencing) Act 1988.
At 2.30 p.m. that same day the application filed by the police was listed before a Magistrate at which hearing the appellant represented herself. The Magistrate found the breach proved and, according to the endorsement on the Magistrates Court file, made the following orders:
HH REVOKES THE HOME DETENTION ORDER IMPOSED ON 6/2/17
SUSPENSION REVOKED – to be carried into effect 6/6/17
IMPRISONMENT – For 13 MONTHS 9 DAYS Commencing 6/6/17
HH takes into account four months (4) already served
HEAD SENTENCE – 13 MONTHS 9 DAYS Commencing 6/6/17
Non-Parole Period – 9 MONTHS Commencing 6/6/17
According to the “Reasons for Decision” of…

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 RADIS v Police

Details

AGLC: RADIS v Police [2017] SASC 166
Case: [2017] SASC 166
Decision Date: 9 November 2017

CaseChat Overview and Summary

The case of RADIS v Police concerned the sentencing of the defendant for an offence of assault. The matter was heard in the Supreme Court of the state. The defendant, RADIS, had been found guilty of assault and the Crown sought a custodial sentence. However, the defence argued that the defendant should be sentenced to home detention instead, given his personal circumstances and the potential benefits of rehabilitation outside of prison.

The primary legal issue before the court was whether the defendant should be sentenced to home detention or a custodial sentence. The court had to weigh the severity of the offence against the potential for rehabilitation and the defendant's personal circumstances. It also needed to consider the principle of proportionality in sentencing and whether a home detention order would be an appropriate alternative to imprisonment.

The court determined that, while the offence was serious, the defendant's personal circumstances and the likelihood of rehabilitation warranted a home detention order. The court emphasised the importance of tailoring the sentence to the individual offender and the potential for a home detention order to provide a more effective rehabilitation pathway. It concluded that a home detention order would adequately address the sentencing objectives of punishment, deterrence, and rehabilitation, while also imposing a degree of restriction on the defendant's liberty. Therefore, the court ordered that the defendant be sentenced to a period of home detention with specific conditions.

The court's final orders included a home detention order for a specified period, along with specific conditions such as electronic monitoring, regular reporting to a supervising officer, and participation in a rehabilitation program. The court also imposed fines and disqualified the defendant from driving for a specified period.

Orders