VIRGIN v Police - [2018] SASC 194

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VIRGIN v POLICE
[2018] SASC 194
Judgment of The Honourable Justice Doyle
20 December 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY SERVICE ORDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant pleaded guilty to two offences: behaving in a disorderly manner in a public place; and damaging property.
The appellant’s counsel informed the sentencing Magistrate that the appellant had made arrangements to compensate the victim for the damage, and requested that the Magistrate not record a conviction. The Magistrate indicated a preparedness to proceed without recording a conviction, but on the basis that the appellant enter into a good behaviour bond, for a term of 18 months, with a condition that he perform 150 hours of community service within the first 12 months of that bond. The appellant entered into the bond in these terms.
During the hearing of the appeal, further evidence about the appellant’s employment and financial circumstances was adduced by the appellant. This evidence established that the community service condition imposed on the appellant would impact significantly upon his employment.
The appellant appeals against his sentence, contending the Magistrate erred in failing to identify the discount applied to the appellant’s sentence for his pleas of guilty, in failing to afford the appellant procedural fairness in imposing a bond with a community service condition, in failing to give adequate weight to the appellant’s employment in imposing that bond, or in otherwise imposing a sentence that was manifestly excessive having regard to the community service condition of the bond.
Held per Doyle J (allowing the appeal):
1. A good behaviour bond, and its terms or conditions, do not fall within the meaning of “sentence” as it appears in s 39(2)(a) of the Sentencing Act 2017 (SA). As such, there was no occasion or need for the Magistrate to exercise any discretion to reduce any term or condition of the bond by “up to 40%” under that subsection on account of the appellant’s guilty pleas.
2.       The Magistrate was required to afford the appellant procedural fairness in respect of the imposition of a bond with a condition of community service. But a failure to afford procedural fairness has not been made out in the circumstances. The Magistrate did not overlook the significance of the appellant’s full-time employment.
3.       Given the fresh evidence about the appellant’s employment and financial circumstances that was adduced at the hearing of the appeal, and the concession that it was in the interests of justice that the Court receive that evidence, it is appropriate that the sentence be set aside.
4.       Appeal allowed. The bond imposed by the Magistrate is set aside, the appellant is invited to enter into a fresh bond with a reduced number of hours of community service.
Sentencing Act 2017 (SA) ss 5, 39, 105(1); Magistrates Court Act 1991 (SA) ss 3, 42,…

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 VIRGIN v Police

Details

AGLC: VIRGIN v Police [2018] SASC 194
Case: [2018] SASC 194
Decision Date: 20 December 2018

CaseChat Overview and Summary

In the case of Virgin v Police, the appellant, Virgin, contested the sentencing decision made by the Magistrates' Court. Virgin was found guilty of an offence and subsequently sentenced by the Magistrate to a bond with conditions, including a requirement to perform a specific number of hours of community service. Dissatisfied with the sentence, Virgin appealed to a higher court, arguing that the sentence was excessive or inadequate.

The primary legal issues for the court to determine were whether the sentence imposed by the Magistrate was manifestly excessive or inadequate, and if the appeal against the sentence was justified. The court was required to consider the principles of sentencing, the objectives of punishment, and whether the sentence imposed aligned with these principles. The court also needed to weigh the objectives of deterrence and punishment against the appellant's capacity to perform community service.

In reviewing the appeal, the court considered the reasons provided by the Magistrate and the appellant's arguments. The court found that the sentence was appropriate overall, except for the number of hours of community service required. The court concluded that while the original sentence might still impact the appellant's ability to undertake additional work, reducing the hours to 60 over a 12-month period was an adequate balance between punishment and deterrence. The court allowed the appeal, set aside the original bond, and invited the appellant to enter into a new bond with the revised community service hours.

The final orders of the court were to allow the appeal, set aside the original sentencing order, and require the appellant to enter into a new bond with reduced community service hours. The court's decision reflects a careful consideration of the sentencing principles and the specific circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is thus appropriate that I exercise the sentencing discretion afresh. Essentially for the reasons given by the Magistrate, as elaborated upon by me, I consider that the sentence imposed was appropriate, save for the number of hours of community service to be performed as a condition of the bond. I would reduce the hours of community service required to 60 hours over a 12 month period. While this may well still inhibit the appellant’s capacity to do all of the additional work he would otherwise have undertaken, and is accustomed to undertake, in my view it is nevertheless an appropriate imposition upon the appellant in all the circumstances of the case. It will ensure that the punitive and deterrent objectives of the sentencing process are adequately achieved.Conclusion I allow the appeal. I set aside the bond imposed by the Magistrate, and I will invite the appellant to enter into a fresh bond in the terms indicated above.

Ratio Decidendi

Legal Principle Established

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