REED v Police - [2007] SASC 26

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
REED v POLICE
[2007] SASC 26
Judgment of The Honourable Justice Layton (ex tempore)
24 January 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - FALSE PRETENCES AND OTHER FRAUDS AND IMPOSITIONS - OBTAINING BY DECEPTION
Appeal against sentence imposed by a Magistrate - appellant pleaded guilty to six counts of deception and six counts of attempted deception - sentenced to three years and eight months imprisonment with a non-parole period of two years and nine months - where Magistrate took a starting point of six years imprisonment, before making deductions for guilty pleas and time spent in custody - where appellant has a long history of similar offending - where appellant suffers from drug addiction - where appellant withdrew from the Drug Court programme - whether sentence manifestly excessive when compared with similar cases - whether too much weight given to deterrence and insufficient weight given to rehabilitation - Held: Sentence was not manifestly excessive - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Police (SA) v Curtis (2004) 145 A Crim R 587; R v Davies (1996) 88 A Crim R 226; R v Ashdown (1994) 72 A Crim R 63; R v Cavanagh [1999] SASC 418; R v Highnett [2000] SASC 280; Craven v Police [2003] SASC 307; Veen v R (No 2) (1988) 164 CLR 465, considered.

REED v POLICE
[2007] SASC 26
Magistrates Appeal: Criminal
LAYTON J:
Introduction

This is an appeal against sentence imposed by a Magistrate on 17 November 2006. The appellant pleaded guilty to six counts of deception and six counts of attempted deception committed against the Adelaide Bank between 10 March 2004 and 6 June 2005. The deception offences consisted of the appellant telephoning the bank’s call centre and applying for a Visa Card. On some occasions the appellant used his own name and on other occasions he used a false name.
On the six occasions when the credit card was approved the appellant attended the bank and produced various false documents, including birth certificates, government entitlement ID cards and disability pension cards. The appellant then obtained the credit card and withdrew funds of approximately $27,000.
The conduct forming the basis of the six counts of attempted deception was essentially the same. However, on those occasions the call centre did not approve the issue of the credit card and the card was therefore not able to be obtained and used. The amount that the appellant attempted to receive totalled $34,000.
In sentencing, the learned Magistrate took as her starting point a term of imprisonment of six years, imposed in respect of all offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA).
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 REED v Police

Details

AGLC: REED v Police [2007] SASC 26
Case: [2007] SASC 26
Decision Date: 24 January 2007

CaseChat Overview and Summary

In the case of Reed v Police, the appellant, Reed, appealed against the sentence imposed by a Magistrate following his guilty plea to six counts of deception and six counts of attempted deception. The Magistrate sentenced Reed to three years and eight months imprisonment, with a non-parole period of two years and nine months. Reed's sentence was calculated by starting with a base of six years imprisonment, then deducting time for his guilty pleas and time already spent in custody. Reed has a history of similar offences and suffers from drug addiction, which he withdrew from during the Drug Court programme. The appeal raised questions about whether the sentence was manifestly excessive when compared to similar cases and whether the Magistrate placed too much emphasis on deterrence and not enough on rehabilitation.

The court had to decide if the sentence imposed by the Magistrate was manifestly excessive and whether the Magistrate appropriately balanced the objectives of deterrence and rehabilitation. The court noted that the Magistrate had considered Reed's offending history and his drug addiction, and had given him credit for his guilty pleas and time spent in custody. The court held that the sentence was not manifestly excessive, and that the Magistrate had appropriately balanced the relevant sentencing considerations.

Accordingly, the appeal was dismissed. The court found that the Magistrate had not erred in imposing the sentence and that it was appropriate given the circumstances of the case. The court did not find that the sentence was manifestly excessive, nor that the Magistrate had given too much weight to deterrence and not enough to rehabilitation. The appeal was unsuccessful, and the original sentence stood.

No further orders were made by the court. The outcome of the appeal did not result in any modification of the sentence imposed by the Magistrate. The appellant's appeal against sentence was dismissed, and the original sentence remained in place.

Orders