Tong v Police - [1998] SASC 6813

TONG v POLICE
[1998] SASC 6813

Magistrates Appeal
Bleby J

This is an appeal against a number of sentences of imprisonment imposed on the appellant in the Magistrates Court of South Australia, which sentences, totalling three months and fourteen days, were directed to be served cumulatively from the date on which the sentence was passed, namely 23 June 1998. On 13 August I allowed the appeal and directed that the sentences should commence as from 24 April 1998. I indicated that I would publish reasons for that decision. These are those reasons.
There were four groups of offences for which the appellant was sentenced on 23 June. In chronological order, the first was an offence of receiving stolen property committed on 19 August 1996 (“the 1996 receiving offence”). For that offence the magistrate imposed a sentence of imprisonment of fourteen days. The second group of offences occurred on 16 November 1996 and comprised driving an unregistered vehicle, driving an uninsured vehicle, driving whilst not holding a current driver’s licence and driving a vehicle contrary to a defect notice (“the 1996 vehicles offences”). For those offences the magistrate imposed a fine of $400 which, together with the criminal injuries compensation levy, court costs and prosecution costs resulted in a total payment required of $622. The third group of offences occurred on 3 February 1998. They consisted of driving whilst disqualified from holding or obtaining a driver’s licence and failing to answer questions of police (“the February 1998 vehicle offences”). For these two offences the magistrate imposed a penalty of one month imprisonment. The fourth group of offences comprised driving a vehicle whilst disqualified from holding or obtaining a driver’s licence, driving an unregistered vehicle, driving an uninsured vehicle and failing to answer questions of police. These all occurred on 24 April 1998 (“the April 1998 vehicle offences”). For these offences the magistrate imposed a penalty of two months’ imprisonment. Each period of imprisonment was directed to be cumulative upon the other, making a total period of three months and fourteen days imprisonment. The magistrate directed that they be served from the date of sentence, namely 23 June 1998.
The appellant had been taken into custody on 24 April 1998, the date of the April 1998 vehicle offences. He had been in custody continuously until the date of his sentence, namely a period of two months. The sentencing magistrate was asked to backdate the sentence to that date. The magistrate declined to do so. He noted that a great many fines had been imposed on the appellant for numerous offences, and the magistrate had been told that warrants for imprisonment in default of payment of those fines had been executed. In the course of his sentencing remarks the magistrate said:
“It has been put to me I should back‑date that sentence from the date you came into custody. In normal circumstances where a person has been on remand awaiting sentence that would be the case, however in your case, during that two…

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 Tong v Police

Details

AGLC: Tong v Police [1998] SASC 6813
Case: [1998] SASC 6813
Decision Date: 27 August 1998

CaseChat Overview and Summary

The case of Tong v Police involves an appeal by the appellant, Tong, against the sentences of imprisonment imposed on him by the Magistrates Court of South Australia. The sentences, which totaled three months and fourteen days, were to be served cumulatively from the date they were passed, 23 June 1998. Tong was already in custody from 24 April 1998, the date of the latest offences, and his appeal sought either a backdating of the sentences to 24 April or a reduction in the length of the sentences to account for the time already spent in custody. The appeal was allowed by Bleby J, who directed that the sentences should commence from 24 April 1998.

The key legal issues in the case revolved around the interpretation and application of section 30 of the Criminal Law (Sentencing) Act 1988, which mandates that a court must specify the commencement date of a sentence of imprisonment unless it is suspended. The appellant argued that the magistrate should have backdated the sentences to 24 April or reduced the sentences to account for the time spent in custody prior to sentencing. The respondent contended that the magistrate had the discretion to decide whether to consider the time spent in custody and had exercised that discretion not to do so.

The court found that the magistrate had erred in not considering the previous period in custody when fixing the sentence. The court reasoned that while the appellant was in custody pursuant to warrants for unpaid fines, the remand orders made by the magistrate for the offences in question meant that the appellant was in custody for those offences. The court held that the magistrate should have either backdated the sentences or reduced them to account for the time spent in custody, and that the sentences should have commenced from 24 April 1998. The court allowed the appeal to rectify this error.

The final orders of the court were that the sentences imposed on the appellant should commence from 24 April 1998. The court did not need to decide whether the sentences could be served concurrently with the default imprisonment under the warrants, as the combined sentences expired on 7 August 1998, but the appellant remained in custody under the warrants.

Orders