Rowe v Police - [2003] SASC 160

ROWE v POLICE
[2003] SASC 160
Magistrates Appeal
Criminal

SULAN J. This is an appeal against sentences imposed in the Magistrates Court on 25 February 2003.
The appellant pleaded guilty to numerous offences committed on different days. The learned Magistrate grouped the offences according to the day upon which they were committed. In respect of each group of offences he imposed one overall sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Act”). He then ordered that the periods of imprisonment he had imposed in respect of each group of sentences be served cumulatively. There is some ambiguity in the learned Magistrate’s sentencing remarks. I shall deal with that later in these reasons.
The appellant was required to serve an unexpired period of parole of one month and thirteen days and the Magistrate so ordered. It was agreed that a period of three months and twenty-one days, for which the appellant had been in custody, should be taken into account in arriving at the overall head sentence and non‑parole period.
The offences to which the appellant pleaded guilty and upon which he was sentenced are as follows. For ease of reference I will refer to them in groups.
Group One -
On 19 April 2001, the appellant entered a place of residence of Mick O’Shea’s Irish Pub as a trespasser with the intent of committing larceny. He pleaded guilty to aggravated serious criminal trespass in a place of residence. He also pleaded guilty to larceny of a refrigerator.
Group 2 -
On 7 September 2002, premises occupied by Austereo Network were broken into and electrical appliances with a value of $12,000 were taken. The appellant was found in possession of some of those items the day after they were stolen. He pleaded guilty to receiving. He also had in his possession various items including a knife. He pleaded guilty to carrying an offensive weapon and being in possession of housebreaking implements.
Group 3 -
On 25 September 2002, the appellant was found in possession of jewellery and electrical equipment. On that day a motor vehicle was taken. The appellant was also in breach of a bail agreement. The appellant pleaded guilty to unlawful possession, illegal use and breach of a bail agreement.
Group 4 -
On 31 October 2002, the appellant was found in possession of electrical goods and money together of the value of $1,109.18. He pleaded guilty to receiving stolen goods.
Group 5 -
On 3 November 2002 whilst the appellant was in custody in the Adelaide City Watch House he damaged a blanket the property of the Police Department.
As to the Group 1 offences the Magistrate imposed one overall sentence pursuant to s 18A of the Act of thirteen months imprisonment commencing forthwith. In respect of the Group 2 offences he passed one overall sentence of six months imprisonment, and he ordered that the sentence was to be served cumulatively upon the unexpired period of parole of one month thirteen days in…

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 Rowe v Police

Details

AGLC: Rowe v Police [2003] SASC 160
Case: [2003] SASC 160
Decision Date: 6 June 2003

CaseChat Overview and Summary

The appeal in Rowe v Police, heard by the South Australian Supreme Court, involves the appellant contesting the sentences imposed by the Magistrates Court on 25 February 2003. The appellant, who pleaded guilty to a series of offences committed on various dates, challenges the sentencing process and the overall sentence. The key legal issues revolve around the interpretation of sentencing laws, specifically sections 18A and 75 of the Criminal Law (Sentencing) Act 1988 and section 75 of the Correctional Services Act 1982. The central concerns include whether the Magistrate correctly applied these sections, appropriately accounted for the unexpired period of parole, and correctly calculated the head sentence and non-parole period. Additionally, the appeal questions whether the Magistrate gave appropriate weight to the totality principle and the effect of the appellant's guilty pleas.

The court found that the Magistrate's sentencing process contained errors. Specifically, the Magistrate incorrectly ordered that the sentence for the Group 1 offences commence forthwith, without properly accounting for the unexpired period of parole. The Magistrate also failed to consider the period the appellant had already spent in custody when calculating the final sentence. These errors led to an incorrect overall sentence. Although the Magistrate considered the totality principle, he did not adequately specify the reduction in sentence for the appellant's guilty pleas, which, while not necessarily an error, is considered highly desirable for transparency. The court concluded that these errors warranted allowing the appeal and re-sentencing the appellant.

In re-sentencing the appellant, the court took into account the nature of the offences, the appellant's background, and the principle of totality. The court imposed a final sentence of nineteen months imprisonment, with a non-parole period of nine months, effective from the date of the judgment. This sentence reflects reductions for the appellant's guilty pleas and accounts for the time already spent in custody.

The final orders of the court are that the appellant be imprisoned for nineteen months, with a non-parole period of nine months, to commence immediately.

Orders