Stewart v Police - [2010] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STEWART v POLICE
[2010] SASC 28
Judgment of The Honourable Justice White
18 February 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS
Appeal against sentence - appellant sentenced for one count of falsifying a document with the intention to deceive another and thereby to benefit himself, contrary to s 140(4) of the Criminal Law Consolidation Act 1935 (SA) and one count of being in possession of documents which were reasonably suspected of being obtained by unlawful means, contrary to s 41(1) of the Summary Offences Act 1953 (SA) - single sentence of nine months imprisonment imposed for both offences - Magistrate declined to suspend the sentence of imprisonment.
The sentence imposed was very severe - whether the Magistrate sentenced on an incorrect factual basis - whether the Magistrate sentenced the appellant for offences with which he had not been charged - whether the Magistrate erred by failing to suspend, in whole or in part, the sentence.
Held: Magistrate erred in imposing a penalty for offending with which the appellant had not been charged and which was the subject of suspicion only - appeal allowed - appellant re-sentenced to a single sentence of three months imprisonment for both offences - not appropriate to suspend the term of imprisonment.
Criminal Law Consolidation Act 1935 (SA) s 140; Summary Offences Act 1953 (SA) s 41; Criminal Law (Sentencing) Act 1988 (SA) s 10; Financial Transactions Reports Act 1988 (Cth); Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), referred to.
R v Reiner (1974) 8 SASR 102; R v Godfrey (1993) 69 A Crim R 318; R v Taddeo (1993) 67 A Crim R 338; R v Adami (1989) 51 SASR 229; R v Mangelsdorf (1995) 66 SASR 60; R v Shrestha (1991) 173 CLR 48, applied.
Thai v Director of Public Prosecutions (No 3) [2009] SASC 97; Police v Wang [2007] SASC 228, discussed.
R v Peel [2009] SASC 280; R v Pham [2005] NSWCCA 94; R v Khem (2008) 186 A Crim R 465; R v Do [2005] NSWCCA 258; R v Qin [2008] NSWCCA 189, considered.

STEWART v POLICE
[2010] SASC 28
Magistrates Appeal

WHITE J: This is an appeal against a sentence imposed for two offences.
On 7 December 2009, the appellant committed a contravention of s 140(4) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) by falsifying a document with the intention to deceive another and thereby to obtain a benefit for himself. The appellant filled out a Westpac deposit slip using the name “Mark Gallick” in order to use an account held with Westpac in that name. The name “Mark…

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.

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Details

Case: [2010] SASC 28
Decision Date: 18 February 2010

CaseChat Overview and Summary

In the case of Stewart v Police, the appellant, Stewart, was convicted on two counts: falsifying a document with the intention to deceive and being in possession of documents reasonably suspected of being obtained by unlawful means. The appeal was against the severity of the sentence imposed by the Magistrate, which was a single sentence of nine months imprisonment for both offences, and the Magistrate's refusal to suspend the sentence.

The primary legal issues for the court to decide were whether the Magistrate had sentenced Stewart on an incorrect factual basis, whether Stewart was sentenced for offences he had not been charged with, and whether the Magistrate erred in not suspending the sentence. The court also considered the grounds for interference with the sentence, focusing on the severity of the offending, the premeditation involved, and the personal and general deterrent effect of the sentence.

The court concluded that there was no good reason to suspend the sentence. It took into account the seriousness of the offending and the pre-meditation involved, but disregarded the prospect of Stewart's deportation. The personal and general deterrent effect of the sentence would be best achieved by Stewart serving the whole of the sentence in custody. The court allowed the appeal, setting aside the original sentence and imposing a sentence of imprisonment for three months, with credit for time served.

The court's final orders included setting aside the original sentence, imposing a new sentence of imprisonment for three months, and directing that the service of that sentence be taken to have commenced on 16 December 2009. The orders of the Magistrate concerning fees, costs and the Victims of Crime Levy were to stand.

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

I have given careful consideration to the question of suspension. I have reached the conclusion that there is not good reason to suspend the sentence. I take into account in particular the seriousness of the offending and the pre-meditation involved in the contravention of s 140(4) but have ignored the prospect of the appellant being deported. The personal and general deterrent effect of the sentence will be best achieved by the appellant serving the whole of the sentence in custody.Conclusion For the reasons given above, I allow the appeal. I set aside the sentence of nine months imprisonment imposed by the Magistrate. I impose a sentence of imprisonment for three months and direct that the service of that sentence be taken to have commenced on 16 December 2009. The orders of the Magistrate concerning fees, costs and the Victims of Crime Levy are to stand.

Ratio Decidendi

Legal Principle Established

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