Van Den Hurk v Police - [2009] SASC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VAN DEN HURK v POLICE
[2009] SASC 22
Judgment of The Honourable Justice Gray
4 February 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS - MAXIMUM STATUTORY PENALTY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION - GENERALLY
Criminal Law – appeal against sentence – defendant charged with failing to give name and address as requested by an authorised officer pursuant to Environment Protection Act 1993 (SA) - whether magistrate imposed sentence reflecting conduct not subject of charge – whether magistrate acted beyond power in imposing a sentence of imprisonment – whether sentence manifestly excessive – whether magistrate denied appellant procedural fairness.
Held: Appeal allowed – objects of legal representation – defendant exposed to period of imprisonment beyond magistrate’s power to impose – penalty manifestly excessive –defendant re-sentenced – defendant taken steps towards rehabilitation – unusual circumstances – defendant sufficiently punished – conviction recorded with no further penalty.
Environment Protection Act 1993 (SA) s 90, referred to.

VAN DEN HURK v POLICE
[2009] SASC 22
Magistrates Appeal
GRAY J.

This is an appeal against sentence.
The defendant and appellant, Dale Edward Van Den Hurk, was charged on complaint that on 23 March 2008 at Mount Gambier, having been required by Mark William Roberts, an authorised officer, to answer a question under Part 10 Division 1 of the Environment Protection Act 1993 (SA) refused to answer that question to the best of his knowledge, information and belief.
The defendant appeared unrepresented and following the reading of the charge he entered a plea of guilty. The Magistrate recorded a conviction, imposed a period of imprisonment of 21 days but suspended the term of imprisonment upon the defendant agreeing to enter into a good behaviour bond for three years. It was a condition of the bond that he be supervised for a period of three months, that he undertake such courses or programs as may be directed in respect of alcohol abuse and that he make a personal apology to the police officers concerned with his arrest.
Section 90 of the Environment Protection Act provides as follows:
(1) A person who—
(a)hinders or obstructs an authorised officer, or a person assisting an authorised officer, in the exercise of powers conferred by this Act; or
(b)uses abusive, threatening or insulting language to an authorised officer, or a person assisting an authorised officer; or
(c)refuses or fails to comply with a requirement or direction of an authorised officer under this Division; or
(d)when required by an authorised officer under this Division to answer a question, refuses or fails to answer the question to the best of the person's knowledge, information and belief; or
(e)falsely represents, by words or conduct, that he or she is an authorised officer…

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: Van Den Hurk v Police [2009] SASC 22
Case: [2009] SASC 22
Decision Date: 4 February 2009

CaseChat Overview and Summary

Van Den Hurk was the appellant who appealed against his sentence, which had been imposed by a South Australian magistrate. The appellant was charged with failing to provide his name and address as requested by an authorised officer, pursuant to the Environment Protection Act 1993 (SA). The appellant’s appeal against sentence was heard in the South Australian Supreme Court. The appellant argued that the sentence imposed by the magistrate reflected conduct that was not the subject of the charge, that the magistrate acted beyond their power in imposing a sentence of imprisonment, that the sentence was manifestly excessive, and that the magistrate had denied the appellant procedural fairness.

The court found that the magistrate had imposed a sentence reflecting conduct that was not the subject of the charge, which was a significant error. The court also found that the magistrate had acted beyond their power in imposing a sentence of imprisonment, as the maximum penalty for the offence was a fine of $1,000. The court found that the sentence was manifestly excessive, as it was significantly higher than the maximum penalty for the offence. The court found that the magistrate had denied the appellant procedural fairness by not allowing the appellant to make a submission before the sentence was imposed.

The appeal was allowed, and the appellant was re-sentenced. The court took into account the fact that the appellant had taken steps towards rehabilitation and that the circumstances were unusual. The court found that the appellant had been sufficiently punished and that the conviction should be recorded with no further penalty. The objects of legal representation were considered, and it was found that the appellant had been exposed to a period of imprisonment beyond the magistrate’s power to impose.

Orders