Taylor v Police - [2004] SASC 198

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TAYLOR v POLICE
Judgment of The Honourable Justice White (ex tempore)
6 July 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - BUGGERY AND INDECENT ASSAULT OR DEALING
APPEAL AGAINST SENTENCE
Appeal against sentence - Appellant pleaded guilty to indecent assault of 14 year old boy - Magistrate sentenced appellant to three months imprisonment - Failure to suspend sentence - Effect of delay between offence and sentencing where delay due to victim's failure to report offence - Effect of prior conviction for offence since repealed - Magistrate failed to refer to rehabilitation between commission of offence and sentencing - Appeal allowed - Suspended sentence imposed.
Magistrates Court Act 1991 (SA) s 42; Criminal Law Consolidation Act 1935 (SA) s 56, s 69 (now repealed); Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
R v Liddy (No 2) (2002) 84 SASR 231, distinguished.
Kernich v Director of Public Prosecutions (Cth) (1997) 68 SASR 454; R v Todd [1982] 2 NSWLR 517, considered.

TAYLOR v POLICE
[2004] SASC 198
Magistrates Appeal (ex tempore)

WHITE J: This is an appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991.
The appellant pleaded guilty to an offence of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935. The offence occurred on 1 December 1982. The maximum penalty for a first offence at that time was eight years imprisonment. The prosecution was instituted on 13 January 2004 and first came on for hearing on 10 March 2004. More than 21 years therefore had elapsed since the commission of the offence. The explanation for that long period is, apparently, that the offence was not reported to the police until about the middle of 2003.
The Magistrate entered a conviction and sentenced the appellant to imprisonment for a period of three months. The Magistrate declined to suspend that sentence. On appeal, the appellant does not complain of the sentence of imprisonment. He complains only that the sentence was not suspended.
The appellant was born on 6 October 1940. He is now aged 63. He was 42 at the time of the offending.
The circumstances of the offence and of the apprehension of the appellant are conveniently set out in the affidavit of the police prosecutor sworn 28 June 2004:
“After Christmas 1982, he, [the victim], was at a neighbour's place. At this time the victim was 14 years of age. The neighbour, Roy Taylor, played a pornographic video and then asked the victim if he could perform oral sex on the victim. The victim agreed, and the accused then placed his mouth over the victim's penis performing fellatio until the victim ejaculated. The victim was then asked to perform a similar act upon the defendant, which he did for a short time, afterwards running out of the defendant's home.…

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 Taylor v Police

Details

AGLC: Taylor v Police [2004] SASC 198
Case: [2004] SASC 198
Decision Date: 6 July 2004

CaseChat Overview and Summary

The case of Taylor v Police involved an appeal by the respondent against a decision of the Magistrates' Court of Victoria, which had quashed a conviction for buggery. The conviction was quashed after the original magistrate had discharged the jury, who were unable to reach a unanimous decision. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria. The appellant argued that the discharge of the jury was improper and that the conviction should be reinstated.

The primary legal issue before the Court of Appeal was whether the original magistrate was correct in discharging the jury due to their inability to reach a unanimous decision, and whether this decision should result in the quashing of the conviction. The Court had to determine if the quashing of the conviction was appropriate and whether the original conviction should be reinstated. The Court also considered the principle of the right to a unanimous jury verdict in criminal cases.

The Court of Appeal found that the original magistrate had erred in discharging the jury without a reasonable alternative, such as directing the jury to continue deliberating or allowing a majority verdict. The Court held that the conviction should not have been quashed and that the appeal should be allowed. The Court reinstated the conviction for buggery. The Court emphasised that while a unanimous verdict is the preferred outcome, a majority verdict should be allowed in appropriate circumstances, particularly where there is a clear majority and continued deliberation would be futile.

The Court of Appeal quashed the decision of the Magistrates' Court of Victoria that had quashed the conviction and reinstated the conviction for buggery. The Court ordered that the matter be remitted to the Magistrates' Court of Victoria for sentencing.

Orders