Rysz v Police - [2011] SASC 167

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RYSZ v POLICE
[2011] SASC 167
Judgment of The Honourable Justice White
7 October 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
Appeal against sentence - following guilty pleas, appellant was sentenced to a term of imprisonment for four months for failing to comply with a domestic violence restraining order and threatening to cause harm - the Magistrate declined to suspend the sentence.
Whether sentence excessive - whether Magistrate erred in refusing to suspend the sentence - whether an appeal court can have regard to evidence of facts occurring after the imposition of sentence.
Held: in the circumstances it was not appropriate to receive evidence of facts occurring after the sentence was imposed - the Magistrate did not err in imposing the sentence of imprisonment - the Magistrate erred in failing to consider exercising his power to suspend the sentence partially - appeal allowed.
Markarian v The Queen (2006) 228 CLR 357, applied.
R v C (2004) 89 SASR 270; Neill v Police [1999] SASC 270; Aylett v Police [2006] SASC 132; Police v Cadd (1997) 69 SASR 150; Wessling v Police [2004] SASC 51; Millhouse v Police [2008] SASC 353; Police v Carusi [2002] SASC 240, considered.

RYSZ v POLICE
[2011] SASC 167
Magistrates Appeal

WHITE J. Following his pleas, Mr Rysz was sentenced by a Magistrate for the offences of failing to comply with a domestic violence restraining order[1] and threatening to cause harm.[2]
[1] A contravention of s 15(1) of the Domestic Violence Act 1994 (SA), for which the maximum penalty is imprisonment for two years.
[2] Contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), for which the maximum penalty for a basic offence is imprisonment for five years.
The Magistrate imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) of imprisonment for four months and refused to suspend that sentence. Had it not been for the Mr Rysz’s pleas of guilty, the Magistrate would have imposed a term of imprisonment of five months.
Mr Rysz contends first that the Magistrate erred in imposing a sentence of imprisonment at all; and secondly, that the Magistrate erred by failing to suspend, wholly or partially, the sentence which he did impose.
The sentence imposed by the Magistrate involved the exercise of a discretionary judgment. As such, the circumstances in which this Court will intervene with the sentence on appeal are limited. The Court is not entitled simply to substitute its own opinion as to the appropriate sentence. The approach to be applied is that stated by the plurality in Markarian v The Queen:[3]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal…

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 Rysz v Police

Details

AGLC: Rysz v Police [2011] SASC 167
Case: [2011] SASC 167
Decision Date: 7 October 2011

CaseChat Overview and Summary

The case of Rysz v Police involved an appeal against sentencing by Mr Rysz against the decision made by a Magistrate. The dispute centred on the sentence imposed on Mr Rysz, which he considered to be unduly harsh. The matter was brought before the court for review.

The legal issues before the court included whether the original sentence was appropriate and, if not, what alternative penalty would be more suitable. The court had to consider the principles of sentencing, including the need for punishment, deterrence, and rehabilitation, as well as the circumstances of the offence and the offender.

The court found that the original sentence was excessive and did not adequately reflect the circumstances of the case. The court noted that Mr Rysz had already served one month in custody, which should be taken into account when determining an appropriate penalty. The court decided that a custodial sentence was not necessary and instead opted to record convictions on both counts. The court discharged Mr Rysz without imposing a further penalty, subject to him entering into a bond to be of good behaviour and comply with the directions of a Community Services Officer for a period of 18 months. The court waived the costs of the appeal, but Mr Rysz was still required to pay the Victims of Crime Levy.

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

WHITE J

In the circumstances, I consider that effect should be given to the result which I consider appropriate by setting aside wholly the sentence imposed by the Magistrate. In re-sentencing, I will take account of the fact that Mr Rysz has already served one month in custody and I will not impose any further custodial sentence. I will instead record convictions on both counts and then discharge Mr Rysz without imposing a further penalty upon condition that he enter into a bond to be of good behaviour.Conclusion For the reasons given above, I allow the appeal. I set aside the sentence imposed by the Magistrate. In its place, I record convictions on both counts but will discharge Mr Rysz without further penalty upon him entering into a bond in the sum of $500 to be of good behaviour, and to comply with the directions of the Community Services Officer assigned to him, for a period of 18 months. The Magistrate waived the Court and prosecution costs and I will do likewise. Mr Rysz will still have to pay the Victims of Crime Levy.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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