Sparks v Police - [2007] SASC 25

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SPARKS v POLICE
[2007] SASC 25
Judgment of The Honourable Justice Layton (ex tempore)
25 January 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Magistrates Appeal – appellant pleaded guilty to six offences committed on two separate occasions – the Magistrate convicted the appellant on all counts and imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (‘the Act’) - in relation to three of these offences the appellant was sentenced to nine months imprisonment commencing from the date upon which the appellant was taken into custody – the appellant appealed against this sentence on the ground that it was manifestly excessive – this ground was not advanced on appeal.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE - DISCRETION OF COURT
The offences for which the appellant was convicted amounted to a breach of bond – the bond related to the appellant’s plea of guilty to similar offences more than two years earlier – for all of those offences the appellant was convicted and sentenced to 19 months imprisonment, with a non-parole period of 15 months, suspended upon him entering into a bond to be of good behaviour for three years – the appellant admitted the breach of bond - the Magistrate estreated the bond and revoked the sentence of imprisonment – the Magistrate backdated the sentence and the non-parole period to the date of the application for the breach of bond pursuant to s 58(4)(b) of the Act and also fixed a new non-parole period of 15 months and one day, in accordance with s 32(1)(b) of the Act - the appellant argued that the Magistrate erred in failing to exercise the discretion conferred by s 58(4)(a) of the Act to reduce the sentence relating to the breach of the bond where ‘special circumstances' existed for him to do so.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
The appellant contended that changes in his domestic situation since the entering into the bond amounted to ‘special circumstances’ – he separated from his partner – his ex partner was awaiting finalisation of serious charges for which she had a warrant out for her arrest – it was likely that she would spend a period of time in custody resulting in the appellant’s children being left with no parents to care for them – the appellant was at risk of losing his secure accommodation.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - RECOGNISANCES - BREACH - GENERALLY
Consideration of the sentencing principles applicable to breaches of bond–…

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

Case: [2007] SASC 25
Decision Date: 25 January 2007

CaseChat Overview and Summary

The Magistrates Court of South Australia presided over an appeal by the appellant, who was convicted of six offences committed on two separate occasions. The appellant had pleaded guilty and was sentenced to nine months imprisonment, commencing from the date of his arrest. The appeal focused on the sentence imposed, with the appellant arguing that it was manifestly excessive, though this specific ground was not advanced in the appeal. The primary legal issue before the court was whether the Magistrate erred in failing to exercise the discretion under section 58(4)(a) of the Criminal Law (Sentencing) Act 1988 (SA) to reduce the sentence due to the existence of 'special circumstances.'

The court examined the concept of'special circumstances' in the context of sentencing for breach of bond. The appellant had previously been sentenced to 19 months imprisonment, with a non-parole period of 15 months, which was suspended upon him entering into a bond to be of good behaviour for three years. Upon breaching this bond, the Magistrate revoked the suspended sentence and imposed a new sentence of nine months, backdated to the date of the breach application. The appellant argued that the Magistrate failed to consider 'special circumstances'—specifically, changes in his domestic situation since the bond was entered into, such as separation from his partner and the potential custody of his ex-partner, which would leave their children without parental care, and the risk of losing his secure accommodation.

The court held that the Magistrate indeed erred in not considering the 'special circumstances' as they pertained to the appellant's acute domestic situation. This oversight meant the Magistrate failed to exercise the discretion to reduce the sentence under section 58(4)(a) of the Act. Consequently, the overall sentence was deemed oppressive and inappropriate given the circumstances. The appeal was allowed, and the appellant was re-sentenced.

Orders