STEVENS v Police - [2015] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STEVENS v POLICE
[2015] SASC 73
Judgment of The Honourable Justice Kelly
15 May 2015
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE
Appeal against sentence. The appellant was convicted of driving dangerously to escape police pursuit contrary to s 19AC(1) of the Criminal Law Consolidation Act 1935 (SA). At the time of the offending the appellant was 20 years old. He had never before been sentenced to a term of imprisonment. It was likely that he would lose his employment if required to serve a term of imprisonment.
The appellant was sentenced to a term of three months imprisonment, and given a period of licence disqualification for three years. The sentencing Magistrate declined to exercise the discretion to suspend the sentence of imprisonment.
The appellant appeals only on the ground that the Magistrate erred in declining to exercise the discretion to suspend the term of imprisonment.
Whether the Magistrate erred in declining to exercise the discretion pursuant to s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA).
Held (allowing the appeal):
1. The exercise of the discretion to suspend the sentence of imprisonment was a very finely balanced matter. In such a case, especially where the offender is young and without prior relevant antecedents, it is incumbent on a Magistrate to explain with clarity why it is that prospects of rehabilitation do not militate towards the imposition of a suspended sentence. The Magistrate erred by failing to do so.
2. Proper exercise of a Magistrate’s discretion under s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) requires careful weighing of the deterrent effect of a suspended or immediate sentence of imprisonment against the appellant’s prospects of rehabilitation. It is difficult to see how the Magistrate could have properly weighed the appellant’s prospects of rehabilitation against deterrence, without first considering those prospects. By failing to first consider the appellant’s prospects of rehabilitation before weighing them against deterrence, the Magistrate erred.
3. The appeal is allowed. The part of the order made by the Magistrate refusing to suspend the term of imprisonment is set aside. The term of imprisonment of three months is suspended upon the appellant entering into a bond to be of good behaviour for a period of two years in the sum of $500.
Criminal Law (Sentencing) Act 1988 (SA) s 38(1); Criminal Law Consolidation Act 1935 (SA) s 19AC(1), referred to.
R v Scott [2014] SASCFC 131; The Queen v Weaver (1973) 6 SASR 265, considered.

STEVENS v POLICE
[2015] SASC 73
Magistrates Appeal: Criminal

KELLY J: The appellant appeals against a sentence of imprisonment imposed…

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 STEVENS v Police

Details

AGLC: STEVENS v Police [2015] SASC 73
Case: [2015] SASC 73
Decision Date: 15 May 2015

CaseChat Overview and Summary

The matter before the court involved a defendant, Stevens, who was charged with a driving offence. The specifics of the offence were not detailed in the case summary, but it involved a contravention of traffic laws. The court's task was to determine an appropriate sentence for Stevens, taking into account the purposes of sentencing, which include punishment, deterrence, and rehabilitation. The court also had to consider whether a non-custodial sentence, such as a suspended sentence of imprisonment, was appropriate given the circumstances.

The legal issues before the court included the appropriate weight to be given to the purposes of sentencing in light of the offence committed. It was necessary to assess the need for general deterrence and the potential for reformation and rehabilitation of the offender. The court was also required to evaluate whether a non-custodial sentence would be effective in addressing the offence and the characteristics of the offender. The decision on sentencing involved a balancing act between these various considerations.

In delivering the judgment, the court acknowledged the principles of sentencing and the need to tailor the sentence to the individual circumstances of the offender. The court emphasised the importance of considering the offender's prospects for rehabilitation and the potential for a non-custodial sentence to achieve the objectives of sentencing. The court concluded that a suspended sentence of imprisonment was appropriate, given the offender's potential for rehabilitation and the need for general deterrence. The sentence was designed to balance the punitive aspect with the opportunity for the offender to reform without immediate incarceration.

The final orders of the court were that Stevens was to be given a suspended sentence of imprisonment. This sentence was intended to serve both as a deterrent to the offender and others, and to provide an opportunity for rehabilitation. The specific details of the sentence, such as the length of the suspended term and any conditions attached, were not provided in the summary but would have been part of the court's written judgment.

Orders