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Sheean v Police

Sheean v Police

Case [1999] SASC 187 18 May 1999

Discretionary Factors in Sentencing

Criminal Law

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SHEEAN v POLICE
[1999] SASC 187

Full Court: Prior, Perry and Mullighan JJ

PRIOR J I agree with Mullighan J that, on the material before the magistrate, there was no proper basis to reduce the sentence of one month’s imprisonment imposed but suspended on 5 June 1997.
I also agree that the appellant’s circumstances and his offending on 11 March 1998 did not call for the unusual course of non-custodial sentences for these further breaches of s91 of the Motor Vehicles Act 1959. In my view, both the driving from the beach and the later driving that day were both contumacious. I would have imposed a single custodial sentence of imprisonment for these breaches. That is not to say that the course adopted by the judge on appeal was erroneous in imposing separate sentences for these two offences.
I think the judge was entitled to intervene to maintain adequate standards of punishment for subsequent breaches of s91. If that was all to the appeal, I would have dismissed this appeal. However, the evidence of Mr Byrne cannot be overlooked, even if it fails to be fresh evidence within the proper meaning of that phrase in s42(4) of the Magistrates Court Act 1991. The fact that such material should have been available to the judge on appeal calls for the consideration of that material now. Taking note of it, I incline to the view that whilst maintaining that cumulative sentences of imprisonment for the breach of bond and subsequent breaches of s91 were appropriate and called for a total of three months imprisonment to be served, the circumstances now before this court warrant simply allowing the appeal from the single judge. The consequence is that the sentences imposed by the magistrate stand, to the present appellant’s advantage against the reality that sentences of some months imprisonment should have been carried into effect or imposed.
The magistrate had no material before him to justify the orders he made when revoking the suspended sentence. The sentences imposed by the magistrate for the March 1998 offences were manifestly inadequate. The magistrate’s orders were properly reviewed by this Court.
Whilst concurring in the orders proposed by Mullighan J I point out that in cases like this an executive discretion with respect to proper sentences of imprisonment should not be overlooked. Home detention is a means by which any real risk arising from the imposition of an appropriate sentence of imprisonment may be avoided.

PERRY J. I agree that the appeal should be allowed for the reasons given by Mullighan J. I agree with the orders suggested by him.
During the course of the argument on appeal, reference was made to the decision of the Full Court in Police v Cadd and Ors,[1] and to my decision in Bates v Police.[2] As it has been suggested that there may be some tension between the two decisions, it is appropriate that I add some further comments as to that aspect of the matter.
[1] (1997)…

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 Sheean v Police

Details

AGLC: Sheean v Police [1999] SASC 187
Case: [1999] SASC 187
Decision Date: 18 May 1999

CaseChat Overview and Summary

Sheean appealed against the sentence imposed on him by a magistrate for driving a motor vehicle while disqualified from holding a licence. The police appealed the sentence imposed by the magistrate on the basis that it was manifestly inadequate. The magistrate had imposed a sentence of six days' imprisonment on each of the two charges of driving while disqualified and ordered that the sentences be served concurrently. The magistrate had also ordered that a sentence of imprisonment of one month, which had been suspended upon Sheean entering into a bond, be served concurrently with the new sentences. The magistrate had revoked the bond and ordered Sheean to serve the six days in prison. The police appealed against the magistrate's sentence on the basis that it was manifestly inadequate. The single judge allowed the appeal and reinstated the original sentence of imprisonment for one month. The single judge also set aside the sentences of imprisonment for six days and imposed a sentence of imprisonment for one month on each charge and ordered that all sentences be served cumulatively with Sheean having credit for the six days already served. The consequence was that Sheean was to return to prison and serve the new sentences. Sheean appealed against the orders made by the single judge. The Full Court allowed Sheean's appeal and set aside the sentences of imprisonment imposed by the single judge and the orders made by him. The Full Court restored the sentences imposed by the magistrate. The Full Court found that the magistrate's orders were properly reviewed and that the sentences imposed by the magistrate for the March 1998 offences were manifestly inadequate. The Full Court also found that the evidence of Mr Byrne, a clinical and forensic psychologist, revealed a very serious and relevant psychiatric condition of Sheean. The evidence of Mr Byrne revealed that Sheean was extremely depressed and suicidally depressed, and that he had a serious problem with alcohol which had been manifest for a considerable period of time. The Full Court found that the evidence of Mr Byrne justified a merciful approach to sentencing and that the evidence was relevant to the exercise of the discretion as to whether to intervene on a prosecution appeal. The Full Court found that the evidence of Mr Byrne justified not interfering with the sentences imposed by the magistrate and that it was not necessary to establish sentencing standards or to return Sheean to prison in order to explain the proper principles and standards of sentencing. The Full Court found that the sentences imposed by the magistrate were not so disproportionate to the seriousness of the offences so as to shock the public conscience. The Full Court allowed Sheean's appeal and set aside the sentences of imprisonment imposed by the single judge and the orders made by him. The Full Court restored the sentences imposed by the magistrate.

Orders