Rafferty v Police - [2006] SASC 169

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RAFFERTY v POLICE
[2006] SASC 169
Judgment of The Honourable Chief Justice Doyle
14 June 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - appellant convicted of eight offences - five counts of serious criminal trespass in a non-residential building contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) - three counts of larceny contrary to s 131 of the Criminal Law Consolidation Act 1935 (SA) (now repealed) - sentence of four years with a non-parole period of three years imposed by the Magistrates Court - whether the non-parole period imposed is excessive - the appellant committed the offences in company with other men - together they distracted the staff of a number of hotels in Adelaide before taking monies from the hotels - the criminal record of the appellant presented to the court at the time of sentencing was erroneous - it is apparent that certain offences attributed to the appellant were not committed by the appellant - appeal allowed - appellant re-sentenced in light of his revised antecedent record.
Criminal Law Consolidation Act 1935 (SA) s 131, s 169(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

RAFFERTY v POLICE
[2006] SASC 169
Magistrates Appeal: Criminal

DOYLE CJ: This is an appeal against a sentence imposed by the Magistrates Court. As argued, the only complaint is that the non-parole period is too high.
After a trial in the Magistrates Court, Mr Rafferty was convicted on eight counts. All of the offences were committed on 15 May 2002 and 16 May 2002.
He was convicted on three counts of serious criminal trespass in a non-residential building (not aggravated) contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). He was also convicted of three counts of larceny from those premises, contrary to s 131 (now repealed) of the CLCA. He was convicted on two further counts of serious criminal trespass in a non-residential building (not aggravated) but in relation to those counts there was no associated count of larceny.
For each of the offences contrary to s 169, the maximum punishment was imprisonment for ten years. For each of the offences contrary to s 131 the maximum punishment was imprisonment for five years. The maximum penalty that the Magistrate could impose on any one count was imprisonment for two years.
The facts, in brief, are as follows. Mr Rafferty and four other men travelled from New South Wales to Adelaide planning to commit the offences. The premises in question were hotels. The men entered as a group (during trading hours) and while some of the group distracted staff members, others took money from safes on the premises. The plan was successful at three of the five hotels visited. At those hotels the offenders took amounts of $8,318.55, $16,000 and $20,000. Only about $7,900…

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 Rafferty v Police

Details

AGLC: Rafferty v Police [2006] SASC 169
Case: [2006] SASC 169
Decision Date: 14 June 2006

CaseChat Overview and Summary

In the case of Rafferty v Police, the appellant was convicted of eight criminal offences, including five counts of serious criminal trespass in non-residential buildings and three counts of larceny. The appellant was sentenced to a total of four years in prison, with a non-parole period of three years, by the Magistrates Court. The appellant appealed against the sentence, arguing that the non-parole period was excessive. The basis of the appeal was partly founded on an erroneous criminal record presented to the court at the time of sentencing, which incorrectly attributed certain offences to the appellant. The appeal required the court to consider whether the non-parole period was appropriate, taking into account the appellant's actual criminal history.

The court was required to determine whether the non-parole period imposed was excessive, given the appellant's erroneous criminal record at the time of sentencing. The court had to assess the seriousness of the offences, the appellant's role in them, and the appropriate sentence considering his actual criminal history. The court also needed to evaluate if the Magistrates Court adequately considered the appellant's criminal history, given the inaccuracies in the record presented to it.

The court found that the non-parole period was excessive due to the erroneous criminal record presented to the Magistrates Court at the time of sentencing. The court identified that certain offences attributed to the appellant were not actually committed by him. As a result, the court allowed the appeal and re-sentenced the appellant, taking into account his revised and accurate criminal history. The appellant was re-sentenced in light of his actual antecedents, leading to a revised penalty that the court deemed appropriate.

The final orders of the court involved the allowance of the appeal and the re-sentencing of the appellant, with the non-parole period adjusted to reflect the appellant's accurate criminal history. This decision underscores the importance of accurate sentencing information and the need for courts to ensure that sentences reflect the true circumstances and criminal history of the offender.

Orders