VENUS v Police - [2005] SASC 406

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
VENUS v POLICE
Judgment of The Honourable Justice Perry (ex tempore)
26 October 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Following the appellant's plea of guilty to multiple offences, the magistrate imposed a single, global sentence of imprisonment covering all of the offences - the penalty for some of the offences was limited to a fine - held on appeal that where a global sentence of imprisonment is imposed under s 18A of the Criminal Law (Sentencing) Act 1988, each individual offence must be punishable by a term of imprisonment - appeal allowed, sentence quashed and appellant re-sentenced.
Criminal Law (Sentencing) Act 1988 s 18A and s 58(1)(c)(ii), referred to.
Hermel v Police (2000) 76 SASR 336, considered.

VENUS v POLICE
[2005] SASC 406
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the penalty imposed upon him in the Magistrates Court sitting at Adelaide on 19 August 2005 following his plea of guilty to a number of offences.
In purported exercise of his power under s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) the sentencing magistrate imposed a single penalty, namely, imprisonment for one month, suspended upon the entry by the appellant into a bond to be of good behaviour for one year in the sum of $100, subject to a number of conditions as to supervision and the like, and including a provision for the appellant to perform 160 hours of community service to be completed in one year.
In his amended notice of appeal the appellant complains that the sentence is manifestly excessive and raises a number of other grounds, the most important of which for present purposes is that the magistrate erred in sentencing the appellant in the way that he did, pursuant to s 18A of the Sentencing Act.
At the time when he was sentenced the appellant was before the court to answer to what might be described as three substantive offences.
The first was that on 6 September 2003 he urinated in a public place. The circumstances were that on that date he urinated into a rubbish bin in the foyer of Rundle Mall Plaza building on Stephens Place at Adelaide.
The second substantive offence was damaging property, committed on 23 November 2004. The circumstances of that offence were that he smashed a glass sliding door at a property at Ingle Farm, causing damage in the amount of $445.
The third substantive offence was dishonestly taking property without the owner’s consent. That offence was committed on 21 November 2004, when the appellant removed two candles from a shelf in the Harris Scarfe department store at Adelaide and was seen to carry them through the store and out into the street.
As well as his plea of guilty to those three offences the appellant pleaded guilty to an allegation that he…

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: VENUS v Police [2005] SASC 406
Case: [2005] SASC 406
Decision Date: 26 October 2005

CaseChat Overview and Summary

The appellant, Venus, was convicted of multiple offences and subsequently pleaded guilty. The magistrate imposed a single, global sentence of imprisonment which covered all of the offences. Some of the offences carried a penalty limited to a fine, but the sentence imposed was imprisonment. Venus appealed against the sentence, arguing that a global sentence of imprisonment could not be imposed where some of the offences were punishable by a fine. The appeal was heard by the higher court, which was required to determine whether a global sentence of imprisonment could be imposed under section 18A of the Criminal Law (Sentencing) Act 1988 when some of the offences were punishable by a fine. The court held that, in order for a global sentence of imprisonment to be imposed, each individual offence must be punishable by a term of imprisonment. Since some of the offences in this case carried a penalty limited to a fine, the court found that the global sentence was improper. The appeal was allowed, the sentence was quashed, and the matter was remitted for re-sentencing.

The court reasoned that section 18A of the Criminal Law (Sentencing) Act 1988 provides that a global sentence of imprisonment may be imposed for multiple offences, but this can only occur if each individual offence is punishable by imprisonment. The court found that, in this case, some of the offences were punishable only by a fine, and therefore, the imposition of a global sentence of imprisonment was not permissible. The appeal was allowed, the sentence was quashed, and the matter was remitted for re-sentencing. The court's decision highlights the importance of ensuring that the penalties imposed for each individual offence are consistent with the nature of the offence and the sentencing provisions of the relevant legislation.

Orders