SHILLABEER v STRA - [2007] SASC 274

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SHILLABEER v STRA
[2007] SASC 274
Judgment of The Honourable Justice Debelle (ex tempore)
17 July 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER
Appellant pleaded guilty to resisting Commonwealth public official and engaging in conduct which caused harm to Commonwealth public official – no conviction recorded and respondent entered into a bond of good behaviour – whether magistrate erred sentencing respondent – whether magistrate had failed to have regard to factors under s 19B of the Crimes Act 1914 (Cth) – magistrate erred – respondent sentenced afresh – conviction recorded.
Criminal Code 1995 (Cth) s 147.1, s 149.1; Crimes Act 1914 (Cth) s 4K, s 19B , s 20(1)(a); Criminal Law (Sentencing) Act 1988 (SA) s 15, s 16, referred to.

SHILLABEER v STRA
[2007] SASC 274
Magistrates Appeals

DEBELLE J. On the morning of 6 January 2006, the respondent and her husband flew into the International Terminal of the Adelaide Airport, returning from Bali. Customs officers suspected that they were concealing narcotics internally. The customs officers detained them. It appears that the respondent and her husband began to cause difficulty for the customs officers. Officers of the Federal Police were called. The respondent and her husband were taken to the same interview room. The respondent’s husband resisted the customs officers. He was wrestled to the floor and handcuffed. The respondent was asked several times to leave the interview room and go to another room. Despite several requests, she refused. A police officer escorted her from the room. While being escorted from the room, the respondent struggled with the police officer. As she was being taken from the room, the respondent spat at the police officer. Spittle landed on his face and on his jacket. Some of the spittle entered his eye. The officer was medically examined. He was found not to have been infected but there was no certainty as to that for several months. The respondent and her husband were taken to the Royal Adelaide Hospital. They were subjected to a scan which established that they were not concealing narcotics internally.
The respondent was charged in the Adelaide Magistrates Court with two offences against the Criminal Code of the Commonwealth. The first was resisting a Commonwealth public official in the performance of his duty, contrary to s 149.1 of the Criminal Code. The second was engaging in conduct which caused harm to a Commonwealth public official, intending that the conduct would cause harm, contrary to s 147.1 of the Criminal Code. Ultimately, both charges were heard on 14 May 2007. The respondent pleaded guilty to both charges.
After hearing submissions, the magistrate did not convict the respondent. Pursuant to s 4K of the Crimes Act1914 (Cth) he imposed one penalty in respect of both offences. He discharged the respondent upon her entering into a bond in the sum of $1000 to be of…

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: SHILLABEER v STRA [2007] SASC 274
Case: [2007] SASC 274
Decision Date: 17 July 2007

CaseChat Overview and Summary

The appellant in this case was charged with resisting a Commonwealth public official and engaging in conduct that caused harm to that official. The appellant pleaded guilty to the charges, and as a result, no conviction was recorded. Instead, the respondent entered into a bond of good behaviour. The appeal was lodged by the respondent, questioning whether the magistrate had erred in sentencing by failing to consider specific factors outlined in section 19B of the Crimes Act 1914 (Cth).

The central legal issue before the court was whether the magistrate erred in sentencing the respondent by not considering the factors specified in section 19B of the Crimes Act 1914 (Cth). These factors include the need to deter the respondent and others from committing similar offences, the need to bring the respondent to justice, and the need to protect the community. The court was required to determine if the magistrate's failure to consider these factors rendered the sentence unlawful.

The court found that the magistrate did indeed err in sentencing by not adequately considering the factors under section 19B. The court held that it was essential for the magistrate to have regard to these factors to ensure that the sentence was both appropriate and legally sound. As a result of this error, the sentence was quashed, and the respondent was sentenced afresh. The court also ordered that a conviction be recorded in accordance with the plea of guilty.

The final orders of the court were that the original sentence was quashed, a new sentence was imposed, and a conviction was recorded. The court emphasized the importance of adhering to the statutory requirements when sentencing to ensure the integrity of the judicial process.

Orders