Sumner v Police - [2004] SASC 158

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

SUMNER v POLICE

Judgment of The Honourable Justice White (ex tempore)

28 May 2004

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - ASSAULTS - SENTENCING

Appeal seeking suspension of imprisonment imposed by Magistrate - Appellant charged on complaint with damaging property without lawful authority and assault - pleaded guilty to all counts - Appellant convicted on all counts - Magistrate imposed one penalty of two months - declined to suspend sentence.
Held: Appeal allowed - Magistrate erred in failing to exercise his discretion to suspend sentence - personal position and personal circumstances constitute good reason to suspend sentence - sentence set aside - in lieu thereof Appellant sentenced to imprisonment of two months but sentence to be suspended upon Appellant entering into a bond in the sum of $500 and to be of good behaviour for a period of two years.
Criminal Law Consolidation Act 1935 s 39, s 85; Criminal Law (Sentencing) Act 1988 s 18A, s 38, referred to.

SUMNER v POLICE
[2004] SASC 158

Magistrates Appeal

WHITE J: This is an appeal against sentence. The appellant was charged on complaint with two counts of damaging property without lawful authority, contrary to s85(3) of the Criminal Law Consolidation Act 1935, and one count of assault contrary to s39(1) of the Criminal Law Consolidation Act. In each of the counts of unlawful damage, the damage alleged was less than $2500.

The matter came on before a stipendiary magistrate at Berri on 30 March 2004. The appellant was represented. He pleaded guilty to all counts. The circumstances of the offences are set out in the affidavit of Andrew Heffernan, the police prosecutor, as follows:
“At about 1 pm on Thursday, 1 January 2004, the victim was at his camp on the bank of the River Murray at Berri when the defendant came to his camp and began arguing with a female, who was at the camp. The defendant then trashed the victim’s tent, damaging the tent poles and zip. At the time tent was valued at $60. At 1 am on 2 January 2004 the victim was again at his camp and in his car, when the defendant attended and started hitting the windows with a tyre lever, breaking the window and causing approximately $800 worth of damage. The defendant began spitting at the victim. The victim states that he did not provoke the attack.”
The magistrate convicted the appellant on all counts, and pursuant to s18A of the Criminal Law (Sentencing) Act 1988 imposed one penalty of two months imprisonment for all counts. The magistrate declined to suspend that sentence.
In his sentencing remarks the magistrate said:
“This is a very serious matter. There is an element of provocation. In reality you had no business approaching the camp…

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 Sumner v Police

Details

AGLC: Sumner v Police [2004] SASC 158
Case: [2004] SASC 158
Decision Date: 28 May 2004

CaseChat Overview and Summary

Sumner v Police is an appeal against the sentence imposed by a Magistrate following the conviction of the Appellant for damaging property without lawful authority and assault. The Appellant pleaded guilty to the charges and the Magistrate imposed a penalty of two months imprisonment, declining to suspend the sentence. The Appellant's appeal was against the decision to not suspend the imprisonment sentence.

The key legal issue in this case was whether the Magistrate erred in failing to exercise his discretion to suspend the imprisonment sentence. The Appellant argued that the personal position and personal circumstances of the Appellant constituted good reason to suspend the sentence.

The Court found that the Magistrate had indeed erred in failing to exercise his discretion to suspend the sentence. The personal position and personal circumstances of the Appellant were considered to be good reasons to suspend the sentence. The sentence was set aside, and in lieu thereof, the Appellant was sentenced to imprisonment of two months, but the sentence was to be suspended upon the Appellant entering into a bond in the sum of $500 and to be of good behaviour for a period of two years.

The final orders of the Court were that the appeal was allowed, the sentence was set aside, and in lieu thereof, the Appellant was sentenced to imprisonment of two months, but the sentence was to be suspended upon the Appellant entering into a bond in the sum of $500 and to be of good behaviour for a period of two years.

Orders