RICHARDS v Police - [2007] SASC 368

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
RICHARDS v POLICE
[2007] SASC 368
Judgment of The Honourable Justice Bleby (ex tempore)
16 October 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence – appellant pleaded guilty to a large number of offences – one sentence of 30 months imprisonment with a non-parole period of 18 months imposed in respect of all offences – sentencing Magistrate fixed notional penalties in respect of individual offences or small groups of offences in the process of determining the global penalty – whether court records fail accurately to record the sentence imposed by the Magistrate – whether notional penalties fixed for offences of failing to comply with a bail agreement were manifestly excessive – Held: Court records not an accurate reflection of the sentence intended to be imposed – appeal allowed in this respect – notional penalties for offences of failing to comply with a bail agreement not manifestly excessive – appeal dismissed in this respect.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Bail Act 1985 (SA), referred to.
Nicholls v Police [2003] SASC 303; Nicholls v Police [2007] SASC 142, considered.

RICHARDS v POLICE
[2007] SASC 368
Magistrates Appeal: Criminal
BLEBY J.

This is an appeal against sentence. The appellant was sentenced in the Elizabeth Magistrates Court on 6 July 2007 in relation to a large number of offences. It is necessary to recite what they were and the Magistrates Court files relating to the particular charges.
In court file MCPAR 07-740 there was one conviction of damage to property, an offence which occurred on 27 May 2004.
In court file MCPAR 07-739 there was one conviction of non-aggravated serious criminal trespass (non-residential) with an associated conviction for dishonestly taking property without the owner’s consent. Those offences occurred between 28 August and 30 August 2004.
In file MCPAR 07-741 there was one conviction for non-aggravated serious criminal trespass in a place of residence and an associated conviction of dishonestly taking property without the owner’s consent, an offence which occurred on 3 May 2005.
In file MCPAR 07-736 there was a conviction of one count of common assault on a family member and a second conviction for failing to comply with a domestic violence restraining order. Those offences occurred on 10 August 2005.
In file MCPAR 07-734 there was a conviction on one count of non-aggravated serious criminal trespass (non-residential) and an associated conviction of dishonestly taking property without the owner’s consent. Those offences occurred on 7 September 2005.
In file MCPAR 07-735 there was a conviction on one count of possessing housebreaking implements and another count of stating a false name and address. Those two charges, that is possessing housebreaking implements and stating a false name and address occurred between September and October 2005. There were three convictions in that file of failing to comply with a bail agreement. One breach occurred on…

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 RICHARDS v Police

Details

AGLC: RICHARDS v Police [2007] SASC 368
Case: [2007] SASC 368
Decision Date: 16 October 2007

CaseChat Overview and Summary

The appellant, Richards, appealed against the sentence imposed by a Magistrate, contending that the court records did not accurately reflect the sentence intended by the Magistrate. Richards had pleaded guilty to a large number of offences and was sentenced to 30 months imprisonment with a non-parole period of 18 months. The sentencing Magistrate fixed notional penalties for individual offences or small groups of offences to determine the global penalty. Richards argued that the court records failed to accurately record the sentence imposed, and that the notional penalties for offences of failing to comply with a bail agreement were manifestly excessive.

The court needed to decide whether the court records accurately reflected the sentence imposed by the Magistrate and whether the notional penalties for the offences of failing to comply with a bail agreement were manifestly excessive. The court examined the sentencing remarks of the Magistrate to determine whether the notional penalties were excessive and whether the court records accurately reflected the sentence imposed. The court found that the court records did not accurately reflect the sentence intended by the Magistrate, and that the notional penalties for the offences of failing to comply with a bail agreement were not manifestly excessive.

The court allowed the appeal in respect of the accuracy of the court records, but dismissed the appeal in respect of the notional penalties. The court found that the Magistrate's sentencing remarks demonstrated that the notional penalties were not excessive and that the court records did not accurately reflect the sentence intended by the Magistrate. The court ordered that the sentence be corrected to accurately reflect the sentence intended by the Magistrate.

Additionally, the court dismissed the appeal in respect of the notional penalties for the offences of failing to comply with a bail agreement. The court found that the notional penalties were not manifestly excessive and that the Magistrate had properly considered the relevant factors in determining the notional penalties. The court found that the appeal was dismissed in this respect.

Orders