STEPHENS v Police - [2010] SASC 251

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STEPHENS v POLICE
[2010] SASC 251
Judgment of The Honourable Justice Anderson
16 August 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appellant seeks to appeal non-parole period imposed for offences of serious criminal trespass, two counts of theft, criminal trespass in a place of residence and interfering with a motor vehicle without consent - appellant also convicted of failing to comply with bail agreement, stating false personal details and hindering police - no additional penalty imposed for these offences.

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appellant seeks extention of time to appeal - appeal lodged out of time due to delay of receipt of magistrate's reasons - granting of extension not opposed by respondent - extension granted.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Magistrate's reasons very brief - reasons do not reveal magistrate's intentions in sentencing - magistrate imposed 18 month head sentence taking into account 16 months time served - non-parole period set of 12 months - sentence commenced on date sentenced - whether sentence should have been backdated - whether magistrate intended to set non-parole equating to 82 per cent of head sentence - whether 82 per cent non-parole period excessive.
Held: It is preferable to backdate a sentence - however, failure to do so does not amount to an error of law - in this case, backdating the sentence would have assisted in interpreting the sentencing remarks - structure of magistrate's reasons appears to indicate an intention that the appellant have longer non-parole period in order to benefit from continued drug treatment - in all the circumstances, a non-parole period of 82 per cent of the head sentence was not excessive.
Appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Wilson [2010] SASC 89, applied.

STEPHENS v POLICE
[2010] SASC 251
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant appeals from a decision of a magistrate against the penalty imposed by the magistrate. The appellant pleaded guilty to and was sentenced for several offences as follows: serious criminal trespass, theft, criminal trespass in a place of residence, a second count of theft, and interfering with a motor vehicle without consent. He was also convicted for the following offences: failing to comply with a bail agreement, stating false personal details and hindering the police, but no further penalty was imposed for these offences.
The appellant seeks an extension of time in which to appeal, which is not opposed by the respondent. The circumstances are that the filing of the appeal was delayed whilst awaiting the reasons from the magistrate. In the circumstances, I grant an extension of time.
The magistrate sentenced the appellant pursuant to the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) and…

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 STEPHENS v Police

Details

AGLC: STEPHENS v Police [2010] SASC 251
Case: [2010] SASC 251
Decision Date: 16 August 2010

CaseChat Overview and Summary

Stephens appealed against the non-parole period imposed by the Magistrates Court of South Australia for various offences, including serious criminal trespass, theft, criminal trespass in a place of residence, and interfering with a motor vehicle without consent. He was also convicted of failing to comply with a bail agreement, stating false personal details, and hindering police. The appeal related to the non-parole period of 12 months, which was set out of a 15-month head sentence, taking into account 16 months time served. The appeal was lodged out of time due to a delay in receiving the magistrate's reasons.

The court had to determine whether the non-parole period should have been backdated to the date of the appellant's arrest, whether the magistrate intended to set a non-parole period equating to 82 per cent of the head sentence, and whether such a non-parole period was excessive. The court noted that while it is preferable to backdate a sentence, the failure to do so does not amount to an error of law. The court also noted that the structure of the magistrate's reasons appears to indicate an intention that the appellant have a longer non-parole period to benefit from continued drug treatment.

The court concluded that it is preferable to backdate a sentence but held that it was not an error of law for the magistrate not to do so. The court considered the factors mentioned by the magistrate, particularly the appellant's very serious history of offending, which showed a disregard for authority and demonstrated that lenient penalties in the past had not prevented further offending. The court also considered the interpretation of the magistrate's remarks, which could have indicated that the appellant would continue to receive treatment while in custody and would be better off when eventually released. Ultimately, the court held that a non-parole period of 82 per cent of the head sentence was not excessive.

The appeal was dismissed, but the court suggested that it is preferable to backdate the sentence to the time when someone is taken into custody. The court also noted that the remarks could have been more expansive.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J

Ms Paton submitted that it was equally possible that the magistrate was saying at [3], as set out earlier, that the appellant will simply continue to receive treatment whilst in custody and will be better off when eventually released. She submitted that the remark was not intended as indicating reasonable prospects of rehabilitation. This is, in my view, an equally available interpretation of the very brief remarks of the magistrate.Conclusion As I have said, in my view it would have been preferable for the magistrate to have backdated the head sentence and the non-parole period to the time when the appellant was taken into custody. Had he done that, then his remarks would not have been as difficult to follow. It is not certain what the magistrate intended in his remarks at [3]. If the magistrate intended that the non-parole period should be 82% of the head sentence then, in my view, it is not possible to say that it is too high, because of the factors mentioned by the magistrate, in particular, the very serious history of offending which shows a disregard for authority and shows that lenient penalties in the past have not prevented further offending. Although I cannot be certain what the magistrate meant in [3], I take the view that it was certainly meant to be related and relevant to his rehabilitation. The question is whether the magistrate intended to be lenient in the fixing of the non-parole period or whether he intended to impose one which is in keeping with the interpretation argued for by Ms Paton. After considerable hesitation I have reached the conclusion that, because of the nature and spread of the appellant’s prior offending, the magistrate probably intended to reflect that past record in setting the non-parole period. In the circumstances it cannot be shown that the magistrate has erred in fixing the non-parole period at a relatively high percentage of the head sentence. I would dismiss the appeal. I do suggest that it is preferable to backdate the sentence to the time when someone is taken into custody. This could have prevented some of the confusion with the remarks. Those remarks could also, with due respect to the magistrate, have been somewhat more expansive.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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