Stenecker v Police

Case [2014] SASC 68

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

STENECKER v POLICE

[2014] SASC 68

Judgment of The Honourable Chief Justice Kourakis

29 May 2014

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

This is an appeal against the sentence imposed by a Magistrate following the appellant’s plea of guilty to two charges of assaulting a police officer and one charge of using offensive language - the Magistrate sentenced the appellant to five months imprisonment.

Whether the Magistrate erred in failing to suspend the sentence of imprisonment as a whole; whether the sentence is manifestly excessive; whether the Magistrate erred in applying s 18A of the Criminal Law (Sentencing Act) 1988 (SA) to the charge of using offensive language in a public place. During the course of the appeal, the appellant was given permission to add an additional ground of appeal that the Magistrate had failed to consider the sentencing option of a partially suspended sentence.

Held (Kourakis CJ): 

Dismissing the first ground of appeal - the Magistrate took into account all of the factual circumstances relating to the exercise of the discretion to suspend the sentence of imprisonment as a whole - therefore, it cannot be said that it was manifestly unreasonable of the Magistrate not to suspend the sentence in whole (at [11]).

There was a strong case for the imposition of a partially suspended sentence - the failure of the Magistrate to take that sentencing option into account and to provide reasons for not adopting it constitutes a sentencing error (at [15]).

The use of s 18A of the Criminal Law (Sentencing Act) 1988 (SA) was erroneous – the effect of imposing one sentence of imprisonment on all three counts is to indicate wrongly that the offence of offensive language warranted some period of imprisonment (at [28]).

The five month sentence of imprisonment is partially suspended on the appellant entering into a bond to be of good behaviour (at [35]). 

For the offence of using offensive language, conviction recorded and the appellant discharged without further penalty on the appellant entering into a bond to be of good behaviour (at [36]).

Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 38, 40; Criminal Law (Sentencing) (Suspended Sentences) Amendment Act 2013 (SA); Criminal Law Consolidation Act 1935 (SA), referred to.
Birch v Fitzgerald (1975) 11 SASR 114; R v Copeland (No 2) (2010) 108 SASR 398, discussed.
Millhouse v Police (2008) SASC 353; Rysz v Police [2011] SASC 167; Wessling v Police (2004) 88 SASR 57; Carusi v Police [2002] SASC 240; Police v Golding (1999) 30 MVR 193; Hermel v Police (2000) 76 SASR 336; Police v Berzins (2011) at 111 SASR 319; R v Day (1845) 1 Cox 207; DPP v JWH (unreported, NSWSC, 17 October 1997), considered.

STENECKER v POLICE
[2014] SASC 68

Magistrates Appeal:…

Continue reading Stenecker v Police

Sign in free to access the full text

Details
AGLC
Stenecker v Police [2014] SASC 68
Case
[2014] SASC 68
Decision Date

CaseChat Overview and Summary

Stenecker, the appellant, appealed against the sentence of imprisonment imposed by a Magistrate on 6 February 2014. The appellant contended that the sentence was manifestly excessive, that the Magistrate erred in failing to suspend the sentence, and that the Magistrate erred in applying s 18A of the Sentencing Act to the charge of using offensive language in a public place. The appellant also sought to add an additional ground that the Magistrate had failed to consider the sentencing option of a partially suspended sentence, which was granted by the court. The offences arose from an incident outside a private residence at Aldinga Beach on 16 November 2013, where the appellant, who was intoxicated, was asked by police to leave the public verge of an area, returned, attempted to headbutt a police officer, spat at another police officer, and used profane and offensive language directing abuse at both police officers.

The legal issues before the court were whether the Magistrate erred in failing to suspend the sentence, whether the sentence of five months' imprisonment was manifestly excessive, whether the Magistrate erred in applying s 18A of the Sentencing Act to the charge of using offensive language in a public place, and whether the Magistrate failed to consider the sentencing option of a partially suspended sentence. The court examined the circumstances of the offending, the appellant's intoxication, and his personal circumstances, including his depression and anxiety. The court also considered the appellant's efforts to overcome his addictions and his attendance at Drug and Alcohol Services of South Australia, Warinilla, and counselling sessions with a general practitioner. The court determined that the Magistrate did not err in imposing the sentence and that the sentence was not manifestly excessive. The court found that the Magistrate had considered the option of a partially suspended sentence but considered it inappropriate in the circumstances.

The court concluded that the appeal should be dismissed, and the sentence of imprisonment imposed by the Magistrate was upheld. The court found that the Magistrate had properly exercised his discretion in imposing the sentence and that the sentence was not manifestly excessive. The court also found that the Magistrate had considered the option of a partially suspended sentence but considered it inappropriate in the circumstances. The court determined that the appellant's personal circumstances, including his depression and anxiety, were relevant to the sentence but did not warrant a reduction in the sentence. The court found that the appellant's intoxication and offending behaviour warranted a sentence of imprisonment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an appeal against the sentence of imprisonment imposed by the Magistrate on 6 February 2014. The appellant relies upon the following grounds:1The Learned Magistrate erred in failing to suspend the sentence of imprisonment; 2The sentence of 5 months’ imprisonment was manifestly excessive;3The Learned Magistrate erred in applying s 18A of the Sentencing Act to the charge of using offensive language in a public place.In the course of arguing the appeal, the appellant sought permission to add an additional ground that the Magistrate had failed to consider the sentencing option of a partially suspended sentence. The application was not opposed. I grant the appellant permission to amend his Notice of Appeal to add that ground.Background The offences arose out of a single incident which occurred outside a private residence at Aldinga Beach on 16 November 2013. The appellant was driven by his friend to the residence where police were already in attendance. Two police officers then spoke with his friend, the driver, and the appellant was asked to cease loitering. The circumstances of the first charge were that the appellant, who was intoxicated, was asked by police to leave the public verge of an area. He did so but after about ten minutes the appellant returned. When asked why he had returned the appellant attempted to head-butt a police officer but did not make contact because of the evasive action taken by that officer. The appellant was restrained, handcuffed and placed on to the ground. He then spat at another police officer, with the spittle landing on the trousers of the officer’s uniform. Whilst waiting to be transported to the Christies Beach Police Station following his arrest, the appellant used profane and offensive language directing abuse at both police officers.Personal circumstances The appellant is currently 22 years old. He has a young child from a previous relationship who is almost two years old. He sees his son once a fortnight for three days. The appellant currently lives with his mother who is extremely supportive. The appellant suffered from depression and anxiety from when he was 15 years old, and became addicted to amphetamines and cannabis. He has made efforts to overcome these addictions, attending at Drug and Alcohol Services of South Australia for six months and voluntarily attending a detoxification program at Warinilla. During 2013, the appellant ceased using amphetamines and has significantly reduced his cannabis use. The appellant also attends counselling sessions with a general practitioner to assist with the management of his mental health and to reduce his drug use. He currently takes medication for depression and anxiety.The Magistrate’s reasons The Magistrate imposed a single sentence of eight months’ imprisonment pursuant to s18A of the Sentencing Act, but reduced that sentence to five months’ imprisonment on account of the appellant’s guilty plea. The Magistrate referred to the circumstances of the offending, to the appellant’s intoxication, and to his personal circumstances, including his depression and anxiety.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.