Trotta v Police

Case [2008] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

TROTTA v POLICE

[2008] SASC 16

Judgment of The Honourable Justice David

31 January 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - TIME SPENT IN CUSTODY

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - CUMULATIVE OR CONCURRENT SENTENCES

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY

Criminal law - appeal against sentence - 23 offences committed while on a good behaviour bond - guilty pleas - breach of bond admitted - sentenced to 32 months and two weeks imprisonment with a non-parole period of 17 months and ordered to pay $2,842.96 compensation - whether magistrate should have reduced sentence for time spent in custody - whether magistrate reduced sentence sufficiently for guilty pleas - whether magistrate reduced sentence sufficiently for compensation orders - whether sentence manifestly excessive - whether sentences should have been concurrent rather than cumulative - whether sentence should have been reduced under the totality principle.

Held: Appeal allowed - sentence should have been reduced to reflect time spent in custody - sentence should have been reduced as a result of guilty pleas - appellant re-sentenced to 26 months imprisonment with a non-parole period of 14 months and ordered to pay $2,842.96 compensation.

Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 10(f), s 18A, s 30(2); Criminal Law Consolidation Act 1935 (SA) s 85(3), s 134(1); Motor Vehicles Act 1959 (SA) s 9(1), s 47, s 91, s 102; Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations 1994 reg 32(A); Road Traffic Act 1961 (SA) s 45; Summary Offences Act 1953 (SA) s 6(2), s 15(1)(a), s 15(1ba)(a), referred to.
Brooks v Police (2000) 76 SASR 279; Matulich v Police [2007] SASC 440; Police v Dyke (Unreported, SC (SA), King J, 1 August 1997); R v Harris & Simmonds (1992) 59 SASR 300; R v Healey (Unreported, CCA (SA), Prior, Lander and Wicks JJ, 22 September 1998); R v Rooke (Unreported, CCA (SA), Doyle CJ, Williams and Bleby JJ, 19 June 1998); R v Smith (Unreported, CCA (SA), King CJ, White and Bollen JJ, 10 December 1991); R v Sutherland (Unreported, CCA (SA), King CJ, Perry and Duggan JJ, 16 November 1992), applied.
House v King (1936) 55 CLR 499; Nixon v R (1993) 66 A Crim R 83; R v Becker (2005) 91 SASR 498; R v Knight

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Trotta v Police [2008] SASC 16
Case
[2008] SASC 16
Decision Date

CaseChat Overview and Summary

The case of Trotta v Police involved the appellant appealing against the sentence imposed by the magistrate. The appellant was convicted of 23 offences committed while on a good behaviour bond, for which he pleaded guilty. The sentence imposed by the magistrate was 32 months and two weeks imprisonment, with a non-parole period of 17 months, and an order to pay $2,842.96 compensation. The legal issues that the court was required to decide included whether the magistrate should have reduced the sentence for time spent in custody, whether the sentence should have been reduced for the guilty pleas, whether the sentence should have been reduced for the compensation orders, whether the sentence was manifestly excessive, and whether the sentences should have been concurrent rather than cumulative.

The court found that the magistrate should have reduced the sentence to reflect the time spent in custody and the guilty pleas. The court found that the magistrate had not sufficiently reduced the sentence for the guilty pleas and the time spent in custody. The court also found that the sentence was not manifestly excessive, and that the sentences should have been concurrent rather than cumulative. The court found that the magistrate did not err in failing to reduce the sentence as a result of the totality principle.

The court allowed the appeal and re-sentenced the appellant to 26 months imprisonment with a non-parole period of 14 months and ordered him to pay $2,842.96 compensation. The court also disqualified the appellant from driving for four months, commencing on 15 December 2007. Three months of this disqualification related to the offence of driving without due care and the other month related to the offence of driving uninsured.

Orders

Orders of the court

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Background

Background to the litigation

On 26 September 2007, the magistrate also sentenced the appellant for the offence of possessing a drug of dependence (contrary to s 31(1)(a) of the Controlled Substances Act 1984 (SA)), but the appellant does not appeal against the penalty imposed for that offence.Background After entering into the abovementioned bond, to be of good behaviour for a period of two years, the appellant was charged with 23 further offences on a number of separate Complaints and Informations. The appellant pleaded guilty to all charges and admitted that he had breached his bond. He also undertook to pay compensation. The details of the 23 offences and the penalties imposed by the magistrate are set out below. On 25 January 2007, the appellant smashed the window of a property where his girlfriend resided in Hectorville. The appellant says that this was an accident that occurred while he was knocking on the window. When police attempted to arrest him, the appellant struggled against efforts to place his hands behind his back. He was charged with damaging property (contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (SA) (hereinafter referred to as “the CLCA”) and resisting arrest (contrary to s 6(2) of the Summary Offences Act 1953 (SA)). The magistrate imposed one penalty for these offences (pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (hereinafter referred to as “the CLSA”), of seven days imprisonment, and ordered that he pay compensation in the amount of $80. On 18 February 2007, the appellant was seen running along a street in Campbelltown, carrying a knife. In relation to this conduct he was charged with carrying an offensive weapon (contrary to s 15(1ba)(a) of the Summary Offences Act). For this offence the magistrate imposed a sentence of seven days imprisonment. On 24 February 2007, the appellant removed a security camera from a National Australia Bank automatic teller machine which was located at the intersection of Pirie Street and Gawler Place, Adelaide. At this time the appellant was on bail. The appellant was charged with dishonestly taking property (contrary to s 134(1) of the CLCA) and breach of bail (contrary to s 17 of the Bail Act 1985 (SA)). In relation to these two offences the magistrate imposed one penalty of four months imprisonment (pursuant to s 18A of the CLSA). The magistrate also ordered that compensation be paid, in the amount of $1,373.96. Next, on 28 February 2007, the appellant attended a car sales yard in Klemzig. He indicated that he wanted to test drive a white Subaru WRX Impreza. A car salesman sat in the passenger seat while the appellant drove the vehicle. The appellant allegedly drove the vehicle at speeds over 100 km/h along OG Road, Klemzig. He collided with another car, but failed to stop at the scene of the accident. Following a request from the salesman, the appellant stopped the car in a side street. As the salesman exited the car to inspect the damage, the appellant drove off, causing the salesman to spin around, fall to the ground and graze his hands. On 3 March 2007, police located the vehicle, and the appellant, at a service station on West Terrace, Adelaide. A small axe was located in the foot-well behind the front passenger seat. The Subaru WRX Impreza did not have numberplates, was unregistered and uninsured, and the appellant was disqualified from holding or obtaining a driver’s licence. When police recovered the vehicle, it had damage to the front spoiler and a broken boot release. The appellant was charged with nine offences in relation to this conduct, namely:·two counts of driving while disqualified (contrary to s 91 of the Motor Vehicles Act 1959 (SA));·driving without due care (contrary to s 45 of the Road Traffic Act 1961 (SA));·dishonestly taking property (contrary to s 134(1) of the CLCA);·breaching bail (contrary to s 17 of the Bail Act);·driving a motor vehicle without numberplates attached (contrary to s 47 of the Motor Vehicles Act);·driving an unregistered vehicle (contrary to s 9(1) of the Motor Vehicles Act);·driving an uninsured vehicle (contrary to s 102 of the Motor Vehicles Act); and·carrying an offensive weapon (contrary to s 15(1)(a) of the Summary Offences Act).The magistrate found that these were the most serious of the offences committed by the appellant and accordingly recorded convictions for all offences. For the offences of dishonestly taking property, breaching bail, carrying an offensive weapon and the two counts of driving while disqualified, the magistrate imposed one penalty of 12 months imprisonment (pursuant to s 18A of the CLSA). In addition, the magistrate disqualified the appellant from driving for three months for driving without due care, and one month for driving an uninsured vehicle. These disqualifications were made cumulative, resulting in licence disqualification for four months. This period of disqualification was to commence on 15 December 2007, given that the appellant was already disqualified from driving until that date.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J
The magistrate did not err in failing to reduce the sentence as a result of the totality principle.Conclusion The appeal is allowed, in order to give the appellant credit for time spent in custody and for his guilty pleas. In respect of the 23 offences committed between 25 January 2007 and 16 May 2007, I would impose one sentence of 22 months and two weeks imprisonment, pursuant to s 18A of the CLSA. This is the same length of imprisonment as the magistrate imposed for these offences, plus two months, which was the period previously deducted from the head sentence for the appellant’s guilty plea with respect to the offences relating to the Subaru WRX Impreza. In addition, the appellant is to serve the 12 months imprisonment which had previously been suspended upon him entering into a good behaviour bond. This brings the total sentence to 34 months and two weeks imprisonment. The sentence is then to be reduced by approximately 20 per cent for the appellant’s early guilty pleas, resulting in a sentence of 27 months and two weeks imprisonment. I further reduce this sentence by six weeks for the time spent in custody in relation to these offences. This results in a final head sentence of 26 months imprisonment. I impose a non‑parole period of 14 months. In addition, I order that the appellant pay compensation of $2,842.96. This amount comprises $80 for the offence of damaging property committed on 25 January 2007, $1,373.96 for the offence of dishonestly taking property on 24 February 2007, $839 for the damage caused to the Subaru WRX Impreza, and $550 for the offence of dishonestly taking property on 31 March 2007. Finally, in accordance with the penalty imposed by the magistrate, I disqualify the appellant from driving for four months, commencing on 15 December 2007. Three months of this disqualification relates to the offence of driving without due care and the other month relates to the offence of driving uninsured.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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