STRUGNELL v Police

[2007] SASC 33

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

STRUGNELL v POLICE

[2007] SASC 33

Judgment of The Honourable Justice David

9 February 2007

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING

Appeal against sentence – appellant pleaded guilty to 25 offences – sentencing principles – whether head sentence and non-parole period were manifestly excessive – whether magistrate failed to consider properly the time spent in custody prior to sentencing – whether magistrate erred in failing to make allowance for time spent in custody prior to sentencing when setting non-parole period – whether magistrate correctly applied totality principle – held, appeal dismissed – sentence imposed was not manifestly excessive – no requirement for magistrate to necessarily take into account time spent in custody.

Criminal Law (Sentencing) Act 1988 s 3, s 18A, s 30(2); Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 86A(2), referred to.
R v Sevo (2006) 94 SASR 403, applied.

STRUGNELL v POLICE
[2007] SASC 33

Magistrates Appeal

DAVID J.

Background

1. This is an appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991.

2. On 8 November 2006 the appellant was sentenced in relation to 25 offences committed between 13 May 2003 and 8 July 2006. The sentencing magistrate imposed a head sentence of 38 months and 14 days with a non-parole period of 18 months. The details of those offences are set out later in these reasons.

3. There are two grounds of appeal:

   1.the head sentence was manifestly excessive; and

   2.when fixing the non-parole period the sentencing magistrate failed to take into consideration the time spent in custody prior to the appellant being sentenced.

   Charges and Penalties

   Offences - 8 July 2006 - originally Magistrates Court file number MCCH 06‑3836 - later transferred to Magistrates Court file number AMC‑06‑10611

4. The appellant was charged with:

   1.one count of illegal use of a motor vehicle, contrary to s 86A of the Criminal Law Consolidation Act 1935;

   2.a further count of illegal use of a motor vehicle, contrary to s 86A of the Criminal Law Consolidation Act;

   3.hindering police, contrary to s 6 of the Summary Offences Act 1953;

   4.driving whilst disqualified, contrary to s 91 of the Motor Vehicles Act 1959;

   5.providing a false name and address, contrary to s 74A(3) of the Summary Offences Act; and

   6.unlawful possession, contrary to s 74A(3) of the Summary Offences Act.

5. In relation to these charges, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), the magistrate imposed one penalty. The magistrate started with a notional sentence of 12 months imprisonment, but because of the appellant’s pleas of guilty, reduced that to a sentence of eight months imprisonment. He ordered that the sentence be served cumulatively with the sentence of five months imprisonment in relation to the charges of theft on 4 July 2006 and between 6 and 7 July 2006 (Magistrates Court file…