Stanford v POLICE

[2006] SASC 143

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

STANFORD v POLICE

[2006] SASC 143

Judgment of The Honourable Chief Justice Doyle (ex tempore)

8 May 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES

The appellant failed to comply with an order requiring him to perform community service and was sentenced by the Magistrates Court to 31 days imprisonment - whether the sentencing procedure miscarried - whether the Magistrate should have warned the appellant  that he was contemplating a custodial sentence for the failure to comply with a community service order - error made out - appeal allowed - matter remitted to the Magistrates Court for re-sentencing.

Criminal Law (Sentencing) Act 1988 (SA) s 71, s 71(2), s 71(7), referred to.
Cooling v Steel (1971) 2 SASR 249; Ivanoff v Linnane (1979) 20 SASR 279, applied.

STANFORD v POLICE
[2006] SASC 143

Magistrates Appeal:  Criminal

1. DOYLE CJ (ex tempore)               This is an appeal against sentence. Mr Stanford appeared before the Magistrates Court on an application under s71 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”). The application was made because Mr Stanford had failed to comply with an order requiring performance of community service. The order required him to perform 275 hours within a period of 18 months. He admitted the breach. In fact he performed only seven and a half hours. The Magistrate sentenced him to imprisonment for 31 days.

2. Mr Stanford appealed on the ground that the sentence was manifestly excessive and further, on the ground that the sentencing proceedings miscarried.

3. Mr Stanford was not represented before the Magistrate.  He admitted the breach of the community service order.  When asked what he had to say, he said nothing.  The Magistrate did not inquire whether Mr Stanford wished to have an opportunity to obtain legal advice.  Nor did he warn Mr Stanford of the seriousness of the matter or that imprisonment was a real possibility.  That is common ground as between the parties.

4. In those circumstances the appeal must be allowed.  This Court has said on many occasions that when a defendant is unrepresented, and particularly if imprisonment is a possibility, the defendant should be warned of that possibility and should be given an opportunity to get legal advice.  Indeed, in a situation like the present case, the defendant should have been encouraged to get legal advice.

5. The approach to be taken was canvassed in Cooling v Steel (1971) 2 SASR 249 and in Ivanoff v Linnane (1979) 20 SASR 279 at 282-283. These principles have been referred to on many occasions.

6. In this case the Magistrate as well should have told Mr Stanford by s 71(7) of the Act, it was up to Mr Stanford to establish grounds on which the Magistrate could act if he was to impose anything less than the statutory punishment fixed by reference to s 71(2). That would have brought home to Mr Stanford the seriousness of his position.

7. I am concerned and disappointed that the Magistrate apparently ignored these well-known obligations thereby depriving Mr Stanford of a fair hearing.  The result is an appeal and a re‑hearing which should not have been necessary.  I make the following orders:

   1 That the appeal be allowed.

   2 That the sentence be set aside.

   3That the matter be remitted to the Magistrates Court for reconsideration of the sentence to be imposed.

   4That the matter should be dealt with by a Magistrate other than the Magistrate who sentenced the appellant.