RICHARDSON v Police - [2009] SASC 297

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RICHARDSON v POLICE
[2009] SASC 297
Judgment of The Honourable Justice White
25 September 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Appeal against sentence - appellant pleaded guilty to the offences of unlawfully damaging property and disorderly behaviour - offending breached a suspended sentence bond relating to offences of disorderly behaviour, refusing to provide his name and address and resisting police ("prior offences") - sentencing Magistrate imposed 42 days imprisonment for the offence of unlawfully damaging property; two months imprisonment for the offence of disorderly behaviour and revoked the suspension of the sentence of three months imprisonment imposed for prior offending - these three terms were to be served cumulatively.
Magistrate mistakenly proceeded on the basis that the maximum penalty for the offence of disorderly behaviour was double its actual maximum penalty - whether Magistrate mistakenly proceeded on the basis that the appellant had previously been subject to two terms of imprisonment for the offence of damage property - whether Magistrate erred in ordering that the appellant pay the whole of the bond amount for previous offending.
Held: Magistrate's mistake as to the maximum penalty for the offence of disorderly behaviour was material - Magistrate erroneously proceeded on the basis that the appellant had previously been subject to a term of imprisonment for the offence of damage property.
Appropriate to re-sentence the appellant - six weeks imprisonment to be imposed for the offences of unlawfully damaging property and disorderly behaviour - appropriate to suspend the sentence of imprisonment in the circumstances - appeal allowed.
Criminal Law Consolidation Act 1935 (SA), s 85; Summary Offences Act 1953 (SA), s 6, s 7, s 74A; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 18A, s 58, referred to.
R v Beary (2004) 11 VR 151, considered.

RICHARDSON v POLICE
[2009] SASC 297
Magistrates Appeal

WHITE J: This is an appeal against sentence.
On 10 April 2009, the appellant committed the offence of unlawfully damaging property[1] by smashing the windshield on the door of a taxi. The appellant, who was intoxicated, had travelled as a passenger in the taxi to his home. After alighting, he wrongly construed something said by the taxi driver on his radio as being denigratory of him. He became enraged and punched the windshield. It had to be replaced at the cost of $200. The maximum penalty for this offence is imprisonment for two years.
[1] Criminal Law Consolidation Act 1935 (SA) s 85(3).
Two weeks later, on 24 April 2009, the appellant committed the offence of disorderly behaviour.[2] At about 4.15 pm, while carrying some cans of beer, the appellant entered the McDonald’s restaurant on Penola Road, Mount Gambier. He was intoxicated and…

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.

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Details

AGLC: RICHARDSON v Police [2009] SASC 297
Case: [2009] SASC 297
Decision Date: 25 September 2009

CaseChat Overview and Summary

The appellant, Richardson, appealed against his sentence in the Supreme Court of South Australia, challenging the terms imposed by a Magistrates Court sentencing decision. Richardson had pleaded guilty to two offences, namely unlawfully damaging property and disorderly behaviour. These offences were committed in breach of a suspended sentence bond related to previous offences of disorderly behaviour, refusing to provide name and address, and resisting police. The sentencing Magistrate imposed a total of four months and two days imprisonment, to be served cumulatively, for the two recent offences and the revoked suspended sentence.

The primary legal issues before the court were whether the Magistrate had erred in his understanding of the maximum penalty for the offence of disorderly behaviour and whether the Magistrate had mistakenly believed that the appellant had previously been subject to two terms of imprisonment for the offence of damaging property. Additionally, the court had to determine if the Magistrate erred in ordering that the appellant pay the entire bond amount for the previous offending.

The court found that the Magistrate had indeed misapprehended the maximum penalty for the offence of disorderly behaviour, which was not double the actual maximum penalty. The court also noted that there was no evidence to suggest that the appellant had previously been subject to imprisonment for damaging property. Furthermore, the court considered that the order for the appellant to pay the whole of the bond amount for the previous offending was inappropriate given the circumstances. Consequently, the court allowed the appeal and set aside the orders for imprisonment imposed by the Magistrate. It imposed a new sentence of six weeks imprisonment, to be suspended upon the appellant entering into a bond to be of good behaviour for a period of 15 months, with conditions including supervision by a Community Corrections Officer and the completion of 32 hours of community service within nine months. The order for the appellant to pay the sum of $500 fixed in the bond was also set aside. All other orders made by the Magistrate were to remain in place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the orders that I will make, the appellant will be able to return to the paid workforce sooner than contemplated by the Magistrate. Despite that, there is no other evidence before the Court that the appellant will have the means, within a reasonable time, to pay the amount of the bond. Accordingly I will not make any other order concerning payment of the whole or part of the bond.Conclusion In summary, I allow the appeal. I set aside the orders for imprisonment imposed by the Magistrate for each of the two offences committed in April 2009. Acting under s 18A of the CLSA, I impose a single sentence of imprisonment for six weeks in respect of those two offences. That sentence will be suspended upon the appellant entering into a bond to be of good behaviour for a period of 15 months. It will be a condition of the bond that the appellant be under the supervision of a Community Corrections Officer and that, within the period of nine months commencing on the day upon which he enters into the bond that he perform 32 hours of community service. I also set aside the order of the Magistrate requiring the appellant to pay the sum of $500 fixed in the bond into which he entered on 18 February 2008. In all other respects, the orders made by the Magistrate are to stand.

Ratio Decidendi

Legal Principle Established

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