Tahau v Police - [2010] SASC 152

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TAHAU v POLICE
[2010] SASC 152
Reasons for Decision of The Honourable Justice Vanstone
26 May 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - DISMISSAL
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRESUMPTIONS
Appeal against sentence - suggested errors made by magistrate in describing offending - individual sentence said to be excessive - suggestion that special circumstances should have been found.
Held: appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 58; Offenders Probation Act 1913 s 9(6), referred to.
Postiglione v the Queen (1997) 189 CLR 295; R v B, RWK (2005) 91 SASR 200; R v Buckman (1988) 47 SASR 30, applied.

TAHAU v POLICE
[2010] SASC 152
Magistrates Appeal

VANSTONE J: The appellant was sentenced in the Magistrates Court sitting at Mount Gambier for offences of assault and damaging property. The assault offence was in breach of a bond associated with a nine month suspended sentence imposed for an earlier offence of assault occasioning actual bodily harm. The magistrate revoked the suspension of that sentence and ordered that it be carried into effect. For the assault offence he imposed a sentence of nine months imprisonment, having deducted one month in recognition of the plea of guilty. For the property damage offence he reduced a term of imprisonment of two months to 42 days, on account of the plea of guilty. He ordered that the sentences run consecutively. That gave rise to a total sentence of 18 months and 42 days imprisonment. He fixed a non-parole period of eleven months. The sentence was backdated to commence on 4 December 2009, when the appellant had been taken into custody in relation to the damaging property offence.
The appeal against the sentence was heard on 5 May 2010. At the end of the submissions I ordered that the appeal be dismissed and said that I would provide reasons later. The following are my reasons for dismissing the appeal.
The amended grounds of appeal asserted that the sentence was manifestly excessive. The grounds also complained of errors said to have been made by the magistrate, such as to vitiate the sentencing process. It was also asserted that the magistrate “failed to apply the totality principle”.
I deal first with the errors said to have been made. First, only one of the two offences for which the appellant fell to be sentenced constituted a breach of the earlier bond. That was the assault offence. In his remarks, the magistrate erroneously stated that both offences breached that bond, as he appears to have confused the property damage offence of 4 December 2009 with another offence of property damage allegedly committed on 18 April 2008 but for which the appellant was acquitted. In my view nothing turns on that error. Perhaps it might have been important had there been a question of triviality…

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 Tahau v Police

Details

AGLC: Tahau v Police [2010] SASC 152
Case: [2010] SASC 152
Decision Date: 26 May 2010

CaseChat Overview and Summary

In the case of Tahau v Police, the appellant, Tahau, sought to appeal his sentence imposed by a magistrate in South Australia. The nature of the dispute involved the appellant's contention that the magistrate had erred in describing his offending and that the individual sentence imposed was excessive. Additionally, the appellant suggested that special circumstances should have been considered.

The legal issues central to this appeal were whether the magistrate correctly described the offending and whether the sentence was proportionate. The appellant argued that the magistrate's characterisation of the offence was inaccurate and that the sentence was disproportionately harsh. Furthermore, the appellant posited that special circumstances, which could have mitigated the sentence, were overlooked by the magistrate.

In considering these issues, the court meticulously examined the magistrate's description of the offending and the sentence imposed. It found that the magistrate had correctly characterised the offence and that the sentence was not excessive, considering the circumstances. The court also determined that no special circumstances were present that warranted a different sentence. The appeal was therefore dismissed, upholding the original sentence imposed by the magistrate.

Orders