Were v Police - [2011] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WERE v POLICE
[2011] SASC 134
Judgment of The Honourable Justice Anderson
19 August 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING
Appeal against sentence - appellant pleaded guilty to contravening a domestic violence restraining order, breach of bail, property damage and assault - whether sentencing procedure adopted by the magistrate is sufficiently transparent - whether sentence should be backdated to the time when the appellant was taken into custody in order to enable the extent of the penalty to be clearly understood.
Held: Appeal allowed - not clear from the magistrate's reasons the starting point for the head sentence, the discount given for the plea of guilty and the extent to which the time spent in custody was taken into account - sentence should be backdated to the time when the appellant was taken into custody - matter to be remitted to the magistrate for re-sentencing.
Criminal Law (Sentencing) Act 1988 (SA) s 9A, referred to.
Trotta v Police [2008] SASC 16; R v Sansbury [2010] SASCFC 8; R v Pahuja (No 2) (1989) 50 SASR 551; Frank v Police (2000) 77 SASR 273; R v Becker [2005] SASC 186, applied.

WERE v POLICE
[2011] SASC 134
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant appeals against the methodology adopted by the sentencing magistrate in imposing a sentence of imprisonment for the offences of breaching a domestic violence restraining order, breach of bail, property damage and assault.
All of the offences were committed on 31 December 2010. The appellant also admitted breaching a suspended sentence bond, the result of which breach was that he was required to serve one month’s imprisonment.
The sentencing remarks of the magistrate do not make clear, or sufficiently transparent, the methodology employed by the magistrate in imposing his sentence.
The sentencing remarks
Because they are brief I set out the sentencing remarks in full.
1You have pleaded guilty and it is to your credit that you have pleaded guilty to contravening a domestic violence restraining order, breach of bail, property damage and one count of basic assault. You have also acknowledged that your behaviour placed you in reach of a condition of a bond attached to a suspended sentence of one month’s imprisonment.
2You should not have gone to that place at all because a domestic violence order prohibited that. You went there. You were released on bail with a condition that you comply with the restrictions placed upon you by the domestic violence restraining order.
3If there had been any doubt in your mind about the domestic violence restraining order,…

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 Were v Police

Details

AGLC: Were v Police [2011] SASC 134
Case: [2011] SASC 134
Decision Date: 19 August 2011

CaseChat Overview and Summary

The appellant, Were, appealed against his sentence in the Supreme Court of South Australia, following a conviction for breaching a domestic violence restraining order, breach of bail, property damage, and assault. The crux of the appeal was the transparency of the sentencing procedure adopted by the magistrate and whether the sentence should be backdated to the time the appellant was taken into custody. The appellant argued that the lack of clarity in the magistrate’s reasons for the sentence and the discount given for his guilty plea made it difficult to understand the full extent of the penalty imposed.

The legal issues before the court revolved around the adequacy of the sentencing procedure and the necessity for the sentence to be backdated. The court needed to determine if the magistrate’s reasoning was sufficiently transparent and if the sentence should reflect the time the appellant spent in custody. The court also considered whether the magistrate should have held a hearing under s 9A of the Criminal Law (Sentencing) Act 1988 (SA) to correct the sentencing errors.

The court found that the magistrate's reasons were not clear enough about the starting point for the head sentence, the discount given for the plea of guilty, and the extent to which the time spent in custody was considered. As a result, the appeal was allowed, and the matter was remitted to the magistrate for re-sentencing. The court instructed the magistrate to clarify the starting point for the sentence, the discount for the guilty plea, and the consideration of time spent in custody. Additionally, the sentence should be backdated to the time of the appellant's custody. If further clarification is needed, the matter will be revisited after the magistrate provides the new sentencing remarks.

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

ANDERSON J

There was also an issue as to whether the magistrate should have held a hearing pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 (SA) to rectify the sentencing errors. The magistrate took the view that it was not necessary to do so and that these matters could be raised on appeal. That is a matter for the magistrate’s discretion and I make no further comment on that. In the end result, it may have avoided the matter being sent back if the magistrate had dealt with the point at the time.Conclusion Accordingly the order of this Court is that the appeal be allowed for the purpose of making an order that the matter be remitted to the magistrate for re-sentencing. The magistrate should indicate his process of reasoning as to:(i) the starting point for the head sentence;(ii) the discount allowed for the plea of guilty; and(iii) how much of the time in custody was taken into account. He should also backdate the sentence. I will deal with the matter further if required after the magistrate has produced his further sentencing remarks. Hopefully that will not be necessary.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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