Scott v SA Police - [1993] SASC 4038

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Criminal law - sentencing - larceny - "shoplifting" - five prior offences of the same nature - sentence of imprisonment - previous bond estreated and sentence of imprisonment imposed - sentences to be served cumulatively making a total of 21 days' imprisonment - refusal by Magistrate to suspend the sentence - appeal - Magistrate in error in placing too much emphasis on prevalence of the offence and the need for general and personal deterrence and too little emphasis upon the personal circumstances of the appellant including poor health, psychological dysfunction, domestic violence and prospects of rehabilitation - appeal allowed sentences confirmed but suspended. Wood v Samuels (1974) 8 SASR 465, R v O'Keefe (1969) 2 QB 29, Martin v Scotland
(1972) 2 SASR 271 and Giles v Barnes (1967) SASR 174 referred to.

HRNG ADELAIDE, 6 July 1993 #DATE 6:7:1993
Counsel for appellant:     Mr P Bennett
Solicitors for appellant:    Legal Services Commission
Counsel for respondent:     Ms A V Mclean
Solicitors for respondent: Crown Solicitor for South Australia

ORDER
Appeal allowed.

JUDGE1 MULLIGHAN J The appellant was charged with the larceny from a supermarket of deodorant to the value of $2.35 on 4 September 1992: contrary to s.131 of the Criminal Law Consolidation Act, 1935. She pleaded not guilty and, after a trial before a learned Special Magistrate, was found guilty and convicted of that offence. It was then alleged that she was in breach of a bond into which she entered on 11 March 1992. She had pleaded guilty to the larceny of lemon essence and garlic salt to the value of $1.98 from the same supermarket on 24 September, 1991 and had been convicted of that offence. She was released on a bond in the sum of $200 to be of good behaviour for a period of two years and to come up for sentence in breach of that bond. 2. The appellant acknowledged that she was in breach of the bond. On that charge she was sentenced to imprisonment for seven days and on the other charge she was sentenced to imprisonment for fourteen days to be served cumulatively. In addition she was ordered to pay the amount of the bond within three months. She appeals against these sentences on the grounds that they were manifestly excessive and that the learned Magistrate erred in failing to exercise his discretion to suspend the sentences of imprisonment. 3. The appellant has a significant record of prior offending. On four other occasions she was found guilty of larceny in the nature of "shop lifting", and so the learned Magistrate had to sentence her for the fifth and sixth occasions she was before the court for that offence. 4. In his remarks on penalty he placed considerable emphasis on the need for general deterrence. He said: "Offences of larceny of the shop stealing variety I regard as quite serious having regard firstly to their prevalence, they are absolutely rife,…

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: Scott v SA Police [1993] SASC 4038
Case: [1993] SASC 4038
Decision Date: 6 July 1993

CaseChat Overview and Summary

The case of Scott v SA Police involved the appellant, who was convicted of shoplifting and subsequently sentenced to imprisonment. The appellant appealed against the sentences, arguing they were excessive and that the Magistrate erred in not suspending the sentences. The Supreme Court of South Australia heard the appeal and found that while the sentences were justified, the Magistrate had erred in not adequately considering the appellant's personal circumstances, which included serious health issues, psychological dysfunction, and domestic violence. The court held that the Magistrate had placed too much emphasis on the need for general deterrence and not enough on the appellant's prospects for rehabilitation. The appeal was allowed, and the sentences were confirmed but suspended upon the appellant entering into a bond with conditions including community service and counselling. The order for the appellant to pay a sum of money upon the estreatment of an earlier bond was set aside as it was deemed unjust given the appellant's circumstances.

Orders