TALIANGIS v Police - [2008] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TALIANGIS v POLICE
[2008] SASC 155
Judgment of The Honourable Justice Nyland
13 June 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY
Appeal against sentence - appellant sentenced for multiple offences - global penalty imposed - inference that magistrate relied on s 18A Criminal Law (Sentencing) Act 1988 - insufficient information to determine manner in which he fixed global penalty - whether he included offences punishable by fine - whether earlier bond estreated and penalty included for earlier offence - failure to take into account full period of time served by appellant prior to sentence - whether sufficient discount for plea of guilty - appeal allowed.
Criminal Law Consolidation Act 1935 s 20(3); Criminal Law (Sentencing) Act 1988 ss 18A and 39; Summary Offences Act 1953 ss 6(2) and 7(1)(a); Bail Act 1985 s 17, referred to.

TALIANGIS v POLICE
[2008] SASC 155
Magistrates Appeal
NYLAND J:

This is an appeal against a sentence imposed by a Stipendiary Magistrate sitting in the Magistrates Court at Adelaide on 5 November 2007. The sentence relates to four separate Magistrates Court files:
1. AMC-07-10707:
This is an information which alleges that on 2 August 2007 at Clarence Park, the appellant threatened to apply force directly to a person, contrary to the provisions of s 20(3) of the Criminal Law Consolidation Act 1935. This was alleged to be an aggravated offence as the appellant had used or threatened to use an offensive weapon against a law enforcement officer, knowing the victim to be acting in the course of his or her official duty. The offences were alleged to have taken place at the appellant’s home and included threats by the appellant to harm her children, threats to the police, and throwing a 30 cm knife which landed in close proximity to the police. The maximum penalty for this offence is imprisonment for four years.
2. AMC-07-9799:
This complaint alleges that on 10 June 2007, at Adelaide, the appellant behaved in a disorderly manner in a public place, namely Bent Street, contrary to the provisions of s 7(1)(a) of the Summary Offences Act 1953. It was also alleged that at the same time and place, the appellant resisted a member of the police force in the execution of his duty, contrary to s 6(2) of the Summary Offences Act 1953. The maximum penalty for behaving in a disorderly manner is a fine of $1,250 or three months imprisonment, and for resisting police $2,500 or six months imprisonment.
3. AMC-07-9823:
This complaint alleges two breaches of s 17 of the Bail Act 1985. The first alleges that between 6 September 2007 and 13 September 2007, the appellant failed to reside at the address designated in her bail agreement dated 7 September 2007, and that on…

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.

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Details

AGLC: TALIANGIS v Police [2008] SASC 155
Case: [2008] SASC 155
Decision Date: 13 June 2008

CaseChat Overview and Summary

In the matter of Taliangis v Police, the appellant appealed against his sentence which was imposed for multiple offences. The sentencing magistrate had imposed a global penalty, leading to the inference that the penalty was determined under section 18A of the Criminal Law (Sentencing) Act 1988. The appeal raised questions about the adequacy of the information provided to determine how the global penalty was calculated, whether it included offences punishable by fines, if an earlier bond was estreated and its penalty included for an earlier offence, if the full period of time the appellant had served prior to sentencing was adequately accounted for, and if there was a sufficient discount for the plea of guilty.

The court examined the reasoning behind the magistrate's decision. It found that there was insufficient information to determine how the global penalty was fixed. Additionally, the court identified that the magistrate had not taken into account the full period of time the appellant had served prior to sentencing. The court also found that there was insufficient evidence to show that an adequate discount had been given for the appellant's plea of guilty. These factors led to the conclusion that the appeal should be allowed.

Given the identified issues with the sentencing process, the appeal was successful. The court set aside the sentence imposed by the magistrate and remitted the matter back to the Magistrates Court for resentencing. The court provided no specific directions regarding the resentencing, leaving it to the discretion of the magistrate to consider all relevant factors and impose an appropriate sentence.

Orders