Robert John Foster v SA Police No. SCGRG 96/1526 Judgment No. 5755 Number of Pages 6 Criminal Law - [1996] SASC 5755

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law - sentencing - non-parole period - appeal by a 22 year old man against the refusal by a Magistrate to set a non-parole period with respect to a total head sentence of 13 months imposed with respect to admitted offences of driving whilst disqualified and driving under the influence - long criminal record and history of defiance by the appellant of previous efforts directed towards his rehabilitation - held that the refusal to fix a non-parole period was fully justified. Criminal Law (Sentencing) Act 1988s32, referred to. Flentjar v Wright and Ors 42 SASR 246; Martin v Police (1993) 168 LSJS 344, considered.

HRNG ADELAIDE, 13 August 1996 #DATE 13:8:1996 #ADD 17:9:1996

Counsel for appellant: Mr B Dixon

Solicitors for appellant: Dixon Gallasch Pty Ltd

Counsel for respondent: Miss J Olsson

Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal dismissed.

JUDGE1 PERRY J The appellant appeals against the failure by the learned sentencing magistrate sitting in the Magistrates Court at Elizabeth to fix a non-parole period with respect to terms of imprisonment imposed upon the appellant on various admitted traffic offences.

2. He came before the court charged on two complaints.

3. The first alleged that on 27 July 1995 at Smithfield he drove a motor vehicle whilst disqualified. Following a plea of guilty to that charge, he was convicted and imprisoned for a term of two months.

4. On the other complaint, on his plea of guilty, he was convicted of having, on 11 January 1996, at Davoren Park driven whilst disqualified and further that on the same occasion, he drove while under the influence of alcohol. On those offences he was sentenced to one penalty under s18A of the Criminal Law Sentencing Act (1988), namely, a term of imprisonment for a further four months cumulative upon the sentencing imposed upon the other complaint.

5. In addition he was disqualified from holding or obtaining a driving licence for three years commencing from 21 February 1996.

6. At the time he committed both of the offences the appellant was serving a period of parole having been released on parole on 7 May 1995 following his incarceration in prison for an offence of robbery. It followed that the appellant was obliged to serve the balance of the term of imprisonment with respect to which he had been released on parole, that is to say the balance remaining at the time of his commission of the earliest of the two offences upon which he was before the court. That period was seven months and five days.

7. The two sentences of imprisonment imposed on the present charges were directed to be cumulative, both as between themselves and upon the term of seven months and five days, with the result that the overall head sentence was a period of 13 months and five days. That period being in excess of one year, it was necessary for the learned sentencing…

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: Robert John Foster v SA Police No. SCGRG 96/1526 Judgment No. 5755 Number of Pages 6 Criminal Law [1996] SASC 5755
Case: [1996] SASC 5755
Decision Date: 13 August 1996

CaseChat Overview and Summary

In the Supreme Court of South Australia, Robert John Foster appealed against the refusal by the sentencing magistrate to set a non-parole period with respect to a total head sentence of 13 months imposed on him for admitted offences of driving whilst disqualified and driving under the influence. The appellant, who had a long criminal record and a history of defiance of previous efforts directed towards his rehabilitation, argued that the refusal to fix a non-parole period was erroneous. The court was required to decide whether the sentencing magistrate had correctly exercised his discretion in refusing to set a non-parole period.

The court considered the legal issues involved in exercising the discretion to set a non-parole period. The sentencing magistrate had the discretion to fix a non-parole period under s32(1) of the Criminal Law (Sentencing) Act 1988, but could decline to do so if one or more of the matters set out in s32(5)(c) applied. The court examined the magistrate's reasons and found that he had appropriately considered the appellant's entire criminal background, his history of breaching parole, and his lack of motivation for rehabilitation. The court held that the sentencing magistrate had correctly exercised his discretion and that the refusal to set a non-parole period was justified.

The appeal was dismissed, and the final order was that the appeal was dismissed. The court affirmed the decision of the sentencing magistrate, finding that the refusal to set a non-parole period was justified given the appellant's extensive criminal history and his failure to respond to previous rehabilitation efforts.

Orders