Stachor v Police - [2014] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STACHOR v POLICE
[2014] SASC 126
Judgment of The Honourable Justice Gray
16 September 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCE DURING UNEXPIRED SENTENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - DISCRETION TO REFRAIN FROM FIXING
Appeal against sentence. The defendant pleaded guilty in the Magistrates Court to two counts of contravening a term of an intervention order and one count each of hindering a member of the police force in the execution of their duty, resisting a member of the police force in the execution of their duty, breach of a bail agreement and aggravated assault. The defendant was sentenced on 26 May 2014. At that time, he was serving a sentence of imprisonment imposed in the District Court of two years with a non-parole period of one year commencing on 26 January 2013. The defendant had unsuccessfully applied for parole in relation to that sentence, and would not be eligible to reapply. The Magistrate sentenced the defendant in respect of the two breaches of the intervention order and the breach of bail to one penalty of two months’ imprisonment, to be served concurrently with the sentence imposed in the District Court. For the offences of hindering a member of the police force in the execution of their duty and aggravated assault, the Magistrate imposed the one penalty of four months’ imprisonment to be served cumulatively with the sentence imposed in the District Court. The Magistrate declined to fix a non-parole period.
Whether the overall sentence imposed by the Magistrate consigning the defendant to a further 11 months in custody without any expectation of release on parole was manifestly excessive. Whether the Magistrate was required to review the non-parole period that had been fixed in the District Court. Where the parties agreed on the appeal that the appropriate course was for the appeal to be allowed for the limited purpose of extending the non-parole period.
Held:
1. Appeal allowed for the limited purpose of extending the defendant’s existing non-parole period of one year by a period of four months and, as a consequence, fixing a new non-parole period of one year and four months.
2. The non-parole period commenced on 26 January 2013.
3. The other orders of the Magistrate are confirmed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 32, referred to.

STACHOR v POLICE
[2014] SASC 126
Magistrates Appeals: Criminal
GRAY J.

This is an appeal against sentence.
On 27 March 2014, the defendant and appellant, Joshua Stachor, pleaded guilty in the Magistrates Court to two counts of contravening a term of an intervention order and one count each of hindering a member of the police force in the execution of their duty, resisting a member of the police…

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 Stachor v Police

Details

AGLC: Stachor v Police [2014] SASC 126
Case: [2014] SASC 126
Decision Date

CaseChat Overview and Summary

The defendant in this case, Stachor, appealed against the sentence imposed by the Magistrates Court, seeking to challenge the length of the non-parole period. The defendant had been sentenced on 26 May 2014, having already been serving a two-year term of imprisonment since 26 January 2013. The Magistrate had imposed a two-month sentence for breaches of the intervention order and breach of bail, to run concurrently with the existing sentence, and a four-month sentence for hindering and aggravated assault, to run consecutively. The appeal focused on the non-parole period of one year, which the defendant argued was too lenient given the severity of the offences.

The primary legal issue before the court was whether the non-parole period set by the Magistrate was appropriate in light of the defendant's criminal conduct and the need for deterrence and community protection. The court had to consider the Parole Board report, the submissions of counsel, and the principles of sentencing. It was necessary to determine if the original non-parole period adequately reflected the seriousness of the offences and the defendant's history of reoffending.

In reviewing the sentence, the court took into account the Parole Board's report and the submissions made by the parties. The court found that the original non-parole period did not sufficiently reflect the gravity of the defendant's crimes and his history of breaching the intervention order. Given the need for deterrence and community protection, the court extended the non-parole period by four months, resulting in a new non-parole period of one year and four months. This extension was deemed necessary to appropriately address the defendant's conduct and the impact on the victims.

The court confirmed the other orders made by the Magistrate, including the sentences for the various offences and the payment of levies and fees. The appeal was allowed only for the purpose of extending the non-parole period, which now commenced on 26 January 2013.

Orders

Orders of the court

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Background

Background to the litigation

The defendant was sentenced in the Magistrates Court on 26 May 2014. At that time, the defendant was serving a term of imprisonment of two years commencing on 26 January 2013 which had been imposed in the District Court. The Magistrate sentenced the defendant in respect of the two breaches of the intervention order and the breach of bail to one penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of two months’ imprisonment, reduced from ten weeks on account of the defendant’s pleas of guilty. The Magistrate ordered that this sentence was to commence on 28 April 2014 and was to be served concurrently with the sentences imposed in the District Court. For the offences of hindering a member of the police force in the execution of their duty and aggravated assault, the Magistrate imposed the one penalty of four months’ imprisonment, reduced from six months on account of the pleas of guilty. The Magistrate ordered that this sentence was to be served cumulatively upon the sentences imposed in the District Court. In relation to the offence of resisting a member of the police force in the execution of their duty, it appears that no sentence was imposed. The Magistrate noted that as a result of these cumulative sentences, the defendant had a remaining sentence of 11 months’ imprisonment. The Magistrate indicated that, in the circumstances, she was not required to fix a non-parole period. Orders were made requiring the defendant to pay a victims of crime levy and prosecution fees. BackgroundThe Offending In February 2012, the defendant was served with an intervention order designed to protect his former partner, KB, and their child, Z. On 10 August 2012, the defendant communicated with KB by telephone and then again in person at a shopping centre in Gawler. He told her that he wanted to see Z. At the defendant’s behest, KB got into the defendant’s vehicle with Z and her other child. The defendant subsequently argued with KB. In sentencing in respect of this conduct, the Magistrate proceeded on the basis that the defendant’s conduct represented a breach of the intervention order in the sense that the defendant communicated with KB, that he was in her company and that he intimidated her. On 11 August 2012, the defendant was again in the company of KB. The defendant acted in an aggressive and frightening manner, prompting KB to send a text message to the defendant’s mother seeking help. When the defendant’s mother arrived, the defendant continued to behave aggressively. KB’s two children witnessed the defendant’s behaviour and were upset. The defendant took Z into a room and locked the others out. The police were called. When police officers attended, the defendant yelled abuse at them. They took Z from the defendant and arrested him. While being escorted from the house, the defendant became agitated, banging his head against a door frame and attempting to pull away from the police. The defendant was restrained on the ground while the police officers awaited a cage car. The defendant remained aggressive and abusive to the police officers and on several occasions moved violently, making it difficult for the police officers to control him. The defendant’s conduct on this occasion gave rise to the charge of resisting members of the police force in the execution of their duty.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

Having regard to the Parole Board report and having regard to the submissions of counsel, as set out above, I consider it appropriate to extend the non-parole period by a period of four months and, as a consequence, fix a new non-parole period of one year and four months. That non-parole period commenced on 26 January 2013.Conclusion I allow the appeal for the limited purpose of extending the defendant’s existing non-parole period of one year by a period of four months and, as a consequence, fixing a new non-parole period of one year and four months. The non-parole period so fixed commenced on 26 January 2013. The other orders made by the Magistrate are confirmed.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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