Sullivan v Police

Case [2010] SASC 216

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

SULLIVAN v POLICE

[2010] SASC 216

Judgment of The Honourable Justice Kourakis

20 July 2010

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM  - SOUTH AUSTRALIA - GENERALLY

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - FRESH EVIDENCE

Appeal against sentence – offences committed whilst appellant on good behaviour bond – Magistrate sentenced appellant to 26 months’ imprisonment with non-parole period of 12 months – Magistrate sentenced on misapprehension that amount of unexpired portion of parole was one year and 27 days when it was actually two years, nine months and 21 days – Magistrate corrected head sentence to four years and 11 months – Magistrate fixed new non-parole period of two years – appellant challenges new non-parole period on basis that Magistrate considered one year to be sufficient in all of the circumstances regardless of head sentence to be served – whether Magistrate erred in varying non-parole period – whether fresh evidence could be considered on appeal – Magistrate had power to vary non-parole period – new non-parole period appropriate proportion of head sentence – fresh evidence would not render non-parole period unjust – appeal dismissed.

Correctional Services Act 1982 s 74, s 75; Criminal Law (Sentencing) Act 1988 s 9A, s 32; Magistrates Court Act 1991 s 42, referred to.
R v Fraser [2007] SASC 257; R v Barnett (2009) 54 MVR 283; R v Sarandoglou [2010] SASC 190, applied.
R v Smith (1987) 44 SASR 587; R v Dorning (1981) 27 SASR 481; R v O’Shea (1982) 31 SASR 129, discussed.

SULLIVAN v POLICE
[2010] SASC 216

Magistrates Appeal:  Criminal

  1. KOURAKIS J:     On 19 October 2009 the appellant was sentenced to concurrent six month terms of imprisonment for offences of non-aggravated serious criminal trespass in a non-residential building and theft.  The offences were committed on 9 June 2008; I shall refer to them as the June offences.  By those offences the appellant breached a bond pursuant to which an earlier sentence of imprisonment had been suspended.  The suspension was revoked and the appellant had to serve the 20 month term of that sentence cumulatively upon the concurrent sentences imposed by the Magistrate.

  2. Both the offence for which the appellant had initially received a suspended sentence and the June offences were committed during a period of the appellant’s release on parole.  The appellant had entered into the bond on 22 May 2007.  The appellant was therefore also required to serve the unexpired portion of the parole as of the date that the first of the offences which breached his parole was committed.  The Magistrate imposed a non-parole period of 12 months on the misapprehension that the unexpired portion of the appellant’s parole was one year 27 days.  It was later discovered that the non-expired portion of parole that the appellant was required to serve was…

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Sullivan v Police [2010] SASC 216
Case
[2010] SASC 216
Decision Date

CaseChat Overview and Summary

The appellant, Mr Sullivan, was convicted of several offences committed while on a good behaviour bond. He was sentenced by a Magistrate to 26 months’ imprisonment with a non-parole period of 12 months. The Magistrate later realised that the unexpired portion of the parole was two years, nine months, and 21 days, rather than one year and 27 days, as originally thought. The Magistrate corrected the head sentence to four years and 11 months and fixed a new non-parole period of two years. The appellant challenged the new non-parole period, arguing that the Magistrate had considered one year to be sufficient in all of the circumstances, regardless of the head sentence to be served. The appellant also sought to rely on fresh evidence on appeal, including a report from a psychiatrist and a letter from his mother.

The appeal required the court to determine whether the Magistrate had erred in varying the non-parole period and whether the court could consider fresh evidence on appeal. The court considered whether the Magistrate had the power to vary the non-parole period, whether the new non-parole period was an appropriate proportion of the head sentence, and whether the fresh evidence could be considered on appeal. The court also considered whether the fresh evidence would render the non-parole period unjust and liable to be set aside.

The court held that the Magistrate had the power to vary the non-parole period and that the new non-parole period was an appropriate proportion of the head sentence. The court also held that fresh evidence could be considered on appeal, but that the evidence would not render the non-parole period unjust. The court dismissed the appeal on this ground.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons that I have explained above, the Magistrate had to re-consider the proper non-parole period having regard to the effective head sentence. The submissions in mitigation having been made on the earlier occasion, there was nothing to be gained by repeating them. In the end result, the non-parole period fixed by the Magistrate was in fact a lesser proportion to the head sentence than the non-parole period that she had fixed on the earlier occasion. In my view, there was no submission that the appellant’s counsel could usefully have made that could have had any bearing on the end result.Fresh evidence on appeal The appellant seeks to rely on fresh evidence in support of his claim that the Magistrate erred in extending the non-parole period to two years when she had already considered a one year non-parole period to be sufficient, having regard to the appellant’s circumstances. Whilst he was remanded in custody he was seen by a psychiatrist, Dr Czechowicz. It was the opinion of Dr Czechowicz that the appellant’s criminal activity was probably associated with depressive symptoms which had not been previously noticed because they were masked by the appellant’s abuse of alcohol and benzodiazepines, which he had taken in the hope of alleviating those symptoms. The report of Dr Czechowicz does no more than note an association between the appellant’s depression and his offending. It is an association which is in any event implicit in the discussion of the appellant’s health problems and the report of the psychologist which were before the Magistrate. The connection between mental states like anxiety, depression and drug dependency and the association of the latter with crime are well known to the courts. A report from the psychologist attached to the clinical advising team to the Magistrates Court Diversion Program reported extensively on the appellant’s mental health. The psychologist referred to his depression and to the opinion of the appellant’s general practitioner that the appellant had suffered from depressed mood for a long time. However, the general practitioner did not formally diagnose a major depressive disorder. The report noted an earlier diagnosis of borderline personality disorder. The appellant also sought to rely on a letter addressed to the Court by his mother in which she provides a brief background of Mr Sullivan’s life from her perspective. She notes that, now that Mr Sullivan is being treated for anxiety and depression, she can see in him a stronger and more determined man and that she feels so positive about his chances of turning his life around that she is prepared to move to Adelaide to live with him and support him. She adds that, should Mr Sullivan return to alcohol or drugs, she would leave immediately. Pursuant to s 42(4) of the Magistrates Court Act 1991, a Court may on an appeal from the Magistrate’s Court re-hear any witnesses or receive fresh evidence if the interests of justice so require it. In my view, the power conferred by that section is a wide one which applies both to appeals against conviction and appeals against sentence. There is no reason to read the statutory power in s 42 narrowly and in the sense of that phrase understood by the common law on motions for new trials.

Decision

Reasons for decision

I have read and had regard to the fresh evidence on which the appellant seeks to rely. I do not consider that the evidence, even if it were to be received, would render the non-parole period fixed by the Magistrate unjust and liable to be set aside. I therefore dismiss the appeal on this ground.Conclusion For the reasons I have given above, and even having regard to the fresh evidence on which the appellant relied, I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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