Teasdale v Police - [2022] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
TEASDALE v POLICE
[2022] SASC 64
Judgment of the Honourable Justice Blue
30 June 2022
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY AND QUASI-CUSTODY
The appellant was sentenced by a Magistrate to imprisonment:
(a)for a total of seven months for offences committed on 29 December 2020 (the most serious being illegal use); and
(b)for a further total of seven months for offences committed on 2 January 2021 (the most serious being drive in a manner dangerous).

The Magistrate fixed a non-parole period of six months and declined to suspend the sentences or order that it be served on home detention.
The appellant appeals against the sentences on five grounds:
1Failing to give credit for 11 days spent in custody.
2Failing to give credit for over nine months spent on home detention bail.
3Failing to suspend the terms of imprisonment, there existing good reason to do so.
4Failing to order that the period of imprisonment be served on home detention.
5Imposing sentences that were manifestly excessive.
Held:
1The Magistrate erred by overlooking 11 days spent by the appellant in custody after his arrest (at 39).
2The Magistrate erred by overlooking over nine months spent on home detention bail (at 52).
3The Magistrate erred in imposing a sentence of imprisonment for 3 months and 2 weeks for making off without payment, which was manifestly excessive, but otherwise the sentences were not manifestly excessive and the total of the sentences was not manifestly excessive (at 61).
4The Magistrate did not err in declining to suspend the terms of imprisonment (at 74).
5The Magistrate did not err in declining to order that the terms of imprisonment be served on home detention (at 87).
6On resentencing, taking into account the time spent in custody and on home detention bail (including pending the appeal), the appellant is sentenced to imprisonment for 5 months and 13 days for the 29 December 2020 offending and imprisonment for 3 months and 19 days to be served cumulatively on counts 2 and 3 of the information in respect of the 2 January 2021 offending. Taking into account that the total imprisonment is now less than 12 months precluding setting a non-parole period, the terms of imprisonment are suspended on the appellant entering into a suspended sentence bond for 18 months (at 101).

Controlled Substances Act 1984 (SA) s 33L(1)(a); Criminal Law Consolidation Act 1935 (SA) s 86(1), s 144(1); Motor Vehicles Act 1959 (SA) s 91(5), s 74(2), s 47(1)(b); Road Traffic Act 1961 (SA) s 46(1); Sentencing Act 2017 (SA) s 30, s 47(5)(a)(i), s 71, s 96(1), s 96(3), s 96(4); Summary Offences Act 1953 (SA) s 74AB(2)(a), referred to.
R v Baldetti [2008] SASC 232; R v Francheschini

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

Case: [2022] SASC 64
Decision Date: 30 June 2022

CaseChat Overview and Summary

The appellant in the case of Teasdale v Police appeals against the sentences imposed upon him by the Magistrates Court. The appellant was convicted on multiple charges, including driving without a license, unauthorized use of a vehicle, possession of a prohibited substance, and dangerous driving. The appeal focuses on the sentencing aspects, particularly the imposition of custodial and home detention orders. The court was tasked with determining whether the sentences were manifestly excessive, whether credit for time spent in custody and on home detention bail was adequately considered, and if the sentences could be better served through alternative measures.

The primary legal issues addressed by the court revolved around the adequacy and proportionality of the sentences imposed. The appellant argued that the trial magistrate failed to give proper credit for the time he spent in custody and on home detention bail, did not suspend the imprisonment terms despite good reasons to do so, and did not order the imprisonment to be served on home detention. Additionally, the appellant claimed the sentences were manifestly excessive given the circumstances.

The court reviewed the grounds for the appeal and considered whether the sentences were manifestly excessive or inadequate. It found that the sentences imposed by the magistrate were indeed disproportionate. The court noted the significant time the appellant had already spent in custody and on home detention bail, which should have been credited towards his sentence. Furthermore, the court determined that suspending the imprisonment terms was appropriate given the change in circumstances since the original sentencing. The court also concluded that the appellant's imprisonment should be served on home detention, making the sentences more humane and proportionate.

The court allowed the appeal, set aside the original sentences, and imposed new sentences. The new sentences were to be served cumulatively, with the terms of imprisonment suspended upon the appellant entering into a bond to be of good behaviour for 18 months. The court ordered further hearings to discuss the terms of the suspended sentence bond and any other orders sought by the parties.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against the sentences on five grounds:1Failing to give credit for 11 days spent in custody.2Failing to give credit for over nine months spent on home detention bail.3Failing to suspend the terms of imprisonment, there existing good reason to do so.4Failing to order that the period of imprisonment be served on home detention.5Imposing sentences that were manifestly excessive.Background On the morning of 29 December 2020 a Toyota Corolla was taken from outside its owner’s house without the owner’s permission. Later that day, a police patrol observed the vehicle at Gilberton and it took off at speed. Subsequently, the vehicle was driven by the appellant into and out of a service station at Trinity Gardens (count 1). The appellant filled the vehicle with 20 litres[9] of petrol valued at $30[10] and drove off without paying (count 2). The vehicle was abandoned at Kent Town. [9] Rounded to the nearest litre.[10] Rounded to the nearest dollar. The appellant did not hold a driver’s licence and was disqualified from obtaining or holding a driver’s licence for two years from October 2019 (count 5). The police located the appellant and asked him the name of the driver of the vehicle and he declined to answer (count 3). The police arrested him and found in his possession a small bag of methylamphetamine (count 4). The appellant was granted police bail and was subsequently charged on information filed on 31 March 2021 with the five counts.[11][11] The appellant was also charged with driving unauthorised (count 2) but that count was ultimately withdrawn and I have renumbered the subsequent counts accordingly for ease of reference. On the evening of 2 January 2021 a police patrol observed the appellant riding a Honda motorcycle with a pillion passenger. The appellant drove through a stale red light at an intersection at Port Adelaide. The motorcycle was followed at a distance by the police officer and was observed to travel in excess of the 50 kilometres per hour speed limit, travel on the wrong side of the road, fail to give way at roundabouts and drive in a reckless manner (count 1). The appellant was then tracked by a police helicopter. He travelled through Rosewater and Athol Park to Mansfield Park. The appellant travelled at speeds up to 100 kilometres per hour in 50 kilometres per hour zones, travelled on the wrong side of the road on many occasions, cut in front of other road users and rode the bike in a reckless way that placed other road users’ and members of the public’s lives and safety in jeopardy (count 1). The appellant parked the motorbike at Mansfield Park and was apprehended on foot by the police. The motorbike was bearing plates that belonged to a 1990 Toyota Land Cruiser registered in the name of the appellant’s deceased grandfather (count 3). The appellant did not hold a driver’s licence (count 2). The appellant was arrested and police bail was refused. He was subsequently charged on information filed on 4 January 2021 with the three counts.[12][12] The appellant was also charged with using a motor vehicle without consent (count 1) but that count was ultimately withdrawn and I have renumbered the subsequent counts accordingly for ease of reference.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the change of circumstances since the appellant was sentenced, it is now appropriate to suspend the sentences of imprisonment upon the appellant entering into a bond to be of good behaviour for a period of 18 months.Conclusion I will make the following orders:1Appeal allowed.2Sentences imposed by the Magistrate set aside.3On the information in file number AMC-21-3023, utilising section 26 of the Sentencing Act, the defendant is sentenced to imprisonment for five months and 13 days.4On counts 2 and 3 on the information in file number MCPAD-21-12, utilising section 26 of the Sentencing Act, the defendant is sentenced to imprisonment for three months and 19 days to be served cumulatively on the sentence imposed on file number AMC-21-3023 and on count 4 the defendant is convicted without further penalty.5The terms of imprisonment are suspended upon the appellant entering into a bond to be of good behaviour for 18 months. I will hear the parties concerning the other terms of the suspended sentence bond. I will hear the parties concerning any other orders sought.

Ratio Decidendi

Legal Principle Established

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