TABACCO v Police - [2008] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
TABACCO v POLICE
[2008] SASC 77
Judgment of The Honourable Justice White
19 March 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Appellant sentenced to 13 months imprisonment for offences committed against South Australian law (the State sentence) - non-parole period of one day imposed - previous recognizance release order made in respect of federal offences revoked and appellant ordered to serve the sentence of six months imprisonment imposed for those offences - whether the magistrate was in error in ordering the appellant to serve the sentence of six months imprisonment for his breaches of federal law - whether State sentence is uncertain - whether the magistrate erred in the application of s 18A - whether the State sentence was fixed according to proper principles of sentencing.
Held: appeal against order that the appellant serve the six month imprisonment for breaches of federal law dismissed - State sentence not uncertain - magistrate erred in his belief about the maximum penalty which could be imposed for two of the State offences - sentence for State offences to be considered afresh - sentence of 13 months imprisonment set aside - appellant re-sentenced.
Criminal Law Consolidation Act 1935 (SA); Summary Offences Act 1953 (SA); Bail Act 1985 (SA); Crimes Act 1914 (Cth) s 20, s 20A, s 20AB; Social Security (Administration) Act 1999 (Cth) s 212; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 32, s 58, referred to.
Harris v Police [2008] SASC 58; R v Campbell (1997) 95 A Crim R 391; Ferenczfy v Commonwealth DPP [2004] SASC 208, applied.
R v Wanganeen [2000] SASC 371; R v Bennett [2005] SASC 55, discussed.
Sweeney v Corporate Security Group [2003] SASC 324; (2003) 142 A Crim R 385; R v Capalbo [2005] SASC 47, considered.

TABACCO v POLICE
[2008] SASC 77
Magistrates Appeal

WHITE J. The appellant was sentenced to imprisonment by a magistrate for a number of contraventions of the Criminal Law Consolidation Act 1935 (SA) (CLCA), the Summary Offences Act 1953 (SA) and the Bail Act 1985 (SA) (the State offences). At the same time, the magistrate revoked an order made on 14 August 2006 under s 20(1)(b) of the Crimes Act 1914 (Cth) under which the appellant had been released from custody upon entering into a recognizance to be of good behaviour. He then ordered that the appellant serve the sentence of six months imprisonment which had been imposed on 14 August 2006.
The appellant appeals against the order that he serve the six months imprisonment imposed on 14 August 2006. He also appeals against the sentence imposed for the contraventions of the State offences. The Police seek an extension of time in which to cross-appeal against the non-parole period fixed by the magistrate in respect of the State offences.
The State Offences
The State offences committed by the appellant commenced on 18 August 2006 and concluded…

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 TABACCO v Police

Details

AGLC: TABACCO v Police [2008] SASC 77
Case: [2008] SASC 77
Decision Date: 19 March 2008

CaseChat Overview and Summary

In the matter of Tobacco v Police, the appellant, Tobacco, was sentenced to 13 months imprisonment for offences committed against South Australian law. Additionally, a non-parole period of one day was imposed. The previous recognizance release order made in respect of federal offences was revoked, and Tobacco was ordered to serve a six-month imprisonment sentence imposed for those offences. The appeal against the order that Tobacco serve the six-month imprisonment for breaches of federal law was dismissed, while the appeal against the sentence imposed by the magistrate for the state offences was allowed, and the sentence was set aside.

The court was required to determine whether the magistrate was in error in ordering Tobacco to serve the sentence of six months imprisonment for his breaches of federal law. Additionally, the court needed to decide whether the State sentence was uncertain and whether the magistrate erred in the application of s 18A. The court also had to consider whether the State sentence was fixed according to proper principles of sentencing.

The court found that the magistrate was not in error in ordering Tobacco to serve the six-month imprisonment for his breaches of federal law. However, the court found that the State sentence was uncertain, and the magistrate had erred in his belief about the maximum penalty which could be imposed for two of the State offences. Therefore, the sentence for the State offences was to be considered afresh. The sentence of 13 months imprisonment was set aside, and Tobacco was re-sentenced. The court imposed a single sentence of imprisonment for 12 weeks for all the State offences, other than the offence of refusing to give his name and address. For that offence, the court imposed a conviction without further penalty. The sentence of 12 weeks was to commence forthwith.

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

WHITE J

The appellant’s counsel acknowledged that possibility. It was an inevitable consequence that a successful challenge to the head sentence would require the non-parole period fixed by the magistrate also to be reviewed. Further, the nominal non-parole period fixed by the magistrate was the subject of challenge by the Police on the cross-appeal. It could be said that the risk that he would have to serve longer in custody as a result of the appeal was known to, and accepted by, the appellant. Nevertheless, it is desirable that double jeopardy should be avoided. It is also desirable that persons such as the present appellant not be constrained from appealing so as to have set aside an excessive head sentence imposed after an incorrect application of sentencing principles. In all these circumstances, I consider that justice will be done if the sentence of 12 weeks commences forthwith.Conclusion For the reasons given above, the appeal against the order made by the magistrate under s 20A(5)(c) of the Crimes Act is dismissed. The appeal against the sentence imposed by the magistrate for the State offences is allowed, and that sentence is set aside. In lieu thereof, acting under s 18A of the Sentencing Act, I impose a single sentence of imprisonment for 12 weeks for all the State offences, other than the offence of refusing to give his name and address (Count 2 on File AMC-07-9302). For that offence I impose a conviction without further penalty. The sentence of 12 weeks is to commence forthwith.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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