Stehbens v Police - [2004] SASC 227

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STEHBENS v POLICE
Judgment of The Honourable Justice White
28 July 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - NON-PAROLE PERIOD OR MINIMUM TERM
SOUTH AUSTRALIA - GENERALLY
Appeal against sentence - Appellant convicted of theft/receiving - Appellant had extensive history of criminal offending - Offences committed while on parole - Term of imprisonment cumulative upon unserved sentence for previous offence - Setting of non-parole period in relation to new period of imprisonment - Magistrate erred in backdating non-parole period so as to commence before the term of imprisonment to which it related - Magistrare erred in failing to take account of six months spent in custody in calculating head sentence - The limitation of two years imprisonment which may be imposed by the Magistrates Court under s 19 of the Magistrates Court Act not a maximum by reference to which all sentences in the Magistrates Court should be scaled - Appeal allowed - Appellant re-sentenced - Sentence of six months imprisonment imposed - Total sentence including unserved previous sentence is two years, seven months, 23 days - Non-parole period of 14 months set.
Magistrates Court Act 1921 s 42; Criminal Law Consolidation Act 1935 s 10, s 134; Criminal Law (Sentencing) Act 1988 s 19, s 31, s 32; Correctional Services Act 1982 s 75, referred to.
R v Creed (1985) 37 SASR 566; R v Slater (1984) 36 SASR 524; R v Bartels (1986) 44 SASR 260; Kennett v The Queen (SACCA, 18 February 1992, Unreported), applied.
R v Khim [2002] SASC 343; R v Power [2003] SASC 288, considered.

STEHBENS v POLICE
[2004] SASC 227
Magistrates Appeal
WHITE J
Introduction

This is an appeal, pursuant to s 42 of the Magistrates Act 1991, against sentence.
On 28 April 2004, the appellant pleaded guilty to a charge of theft, contrary to s 134(1) of the Criminal Law Consolidation 1935. The offence was committed on 8 September 2003 and involved the obtaining or receiving of property to the value of approximately $1,305, namely a DVD player and remote control, an amplifier, two bags, a mobile telephone and charger, and a bracelet. The appellant was also charged with two other counts on the same information. Those charges were withdrawn upon the appellant entering his plea of guilty to the theft.
The Appellant’s Antecedents
The appellant was born on 1 April 1975 and was therefore 29 years old when he appeared before the Magistrate. His Offender History Report was tendered before the Magistrate. It is extensive.
The appellant has 16 previous convictions for offences involving dishonesty, 11 previous convictions for breaking and entering or criminal trespass, and four convictions for illegal use of a motor vehicle in addition to numerous other convictions and court appearances. Four of the appellant’s court appearances have involved presentations for breach of a bond.
Of particular significance is the appellant’s recent history. That is a history…

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 Stehbens v Police

Details

AGLC: Stehbens v Police [2004] SASC 227
Case: [2004] SASC 227
Decision Date: 28 July 2004

CaseChat Overview and Summary

The appellant, Stehbens, appealed against the sentence imposed by the Magistrates Court of South Australia, following his conviction for theft and receiving stolen property. The appellant had a history of criminal offending and committed the offences while on parole. The court was tasked with determining whether the magistrate correctly set the non-parole period in relation to the new term of imprisonment and whether the magistrate erred in backdating the non-parole period to commence before the term of imprisonment to which it related. Additionally, the court had to consider whether the magistrate failed to account for six months spent in custody when calculating the head sentence.

The court found that the magistrate erred in backdating the non-parole period so that it commenced before the term of imprisonment to which it related. The court also held that the magistrate erred in failing to take account of the six months spent in custody when calculating the head sentence. The court clarified that the limitation of two years imprisonment which may be imposed by the Magistrates Court under section 19 of the Magistrates Court Act is not a maximum by reference to which all sentences in the Magistrates Court should be scaled.

The appeal was allowed, and the appellant was re-sentenced to a term of imprisonment of six months. The total sentence, including the unserved previous sentence, was two years, seven months and 23 days. The non-parole period was set at 14 months.

Orders