Wilkey v Police - [2013] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WILKEY v POLICE
[2013] SASC 55
Judgment of The Honourable Justice Kelly
18 April 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant pleaded guilty in the Magistrates Court to one count of non-aggravated serious criminal trespass in a place of residence, one count of theft and one count of aggravated assault - Magistrate imposed one penalty, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), of 26 months imprisonment - appellant argued on appeal that the Magistrate erred in his approach to the appellant's antecedents, that the sentencing discretion miscarried because the appellant was sentenced on an information which was bad for duplicity, and that the sentence of 10 months imprisonment for the aggravated assault was manifestly excessive in all the circumstances - whether sentencing process miscarried.
Held: Aside from correcting a technical error in relation to the balance of the appellant's unexpired parole, there are no grounds to interfere with the sentence imposed at first instance - no error in the Magistrate's approach to the prior offending has been demonstrated - there is no duplicity, either patent or latent, in the charge of aggravated assault for which the appellant was sentenced - a starting point of 10 months for the aggravated assault was within the range available to the Magistrate.
Appeal allowed for limited purpose of correcting error in calculation of unexpired parole as at date of offence.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 31(2); Summary Offences Act 1953 (SA) s 6(2); Criminal Law Consolidation Act 1935 (SA) s 20(1)(c)(ii), referred to.
Haskett v Police [2005] SASC 174; Walsh v Tattersall (1996) 188 CLR 77, applied.
Wellington v Police (2009) 105 SASR 215, distinguished.
Lepadatu v Police [1999] SASC 400; Hull v Nuske (1974) 8 SASR 587, discussed.

WILKEY v POLICE
[2013] SASC 55
Magistrates Appeal: Criminal
KELLY J.
Introduction

The appellant, Robert James Wilkey, pleaded guilty in the Magistrates Court to one count of non-aggravated serious criminal trespass in a place of residence and one count of theft, both committed on 10 February 2011. He also pleaded guilty to one count of aggravated assault committed on 29 June 2012.
The appellant was convicted on each count and the sentencing Magistrate, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”), imposed one sentence of 26 months imprisonment.
Pursuant to s 31(2) of the Act, the Magistrate ordered that the sentence of 26 months imprisonment be served cumulatively upon the balance of the appellant’s unexpired parole of four months and five days, making a total head sentence of 30 months and five days. The Magistrate set a non-parole period of 20 months to commence from the date the appellant was taken into custody, being 29 June 2012, following…

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 Wilkey v Police

Details

AGLC: Wilkey v Police [2013] SASC 55
Case: [2013] SASC 55
Decision Date: 18 April 2013

CaseChat Overview and Summary

The appellant, in this case, was convicted by the Magistrates Court of South Australia on charges of non-aggravated serious criminal trespass, theft, and aggravated assault. He was sentenced to a total of 26 months imprisonment, with a 24-month sentence for the serious criminal trespass and a 10-month sentence for the aggravated assault. The appellant appealed the sentence, arguing that it was manifestly excessive, and that the magistrate erred in his approach to the appellant's antecedents and the sentencing process.

The court was required to determine whether the sentence imposed by the magistrate was manifestly excessive, whether there was an error in the magistrate's approach to the appellant's antecedents, and whether there was any duplicity in the charge of aggravated assault. The court also needed to consider whether the sentence was within the range available to the magistrate.

The court found that the appellant's appeal did not demonstrate any error in the magistrate's approach to the appellant's prior offending. The court also found that there was no duplicity in the charge of aggravated assault, and that a starting point of 10 months for the aggravated assault was within the range available to the magistrate. The court held that aside from correcting a technical error in relation to the balance of the appellant's unexpired parole, there were no grounds to interfere with the sentence imposed at first instance.

The court dismissed the appeal and affirmed the sentence imposed by the magistrate. The court noted that the appellant had a history of offending, including a previous conviction for non-aggravated serious criminal trespass and theft, and that the sentence imposed was within the range available to the magistrate. The court held that there were no grounds to interfere with the sentence imposed at first instance.

Orders

Orders of the court

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Background

Background to the litigation

Finally, it was submitted that the sentence of 10 months for the aggravated assault was in any event manifestly excessive.Background The facts giving rise to the charges of non-aggravated serious criminal trespass and theft on 10 February 2011 relate to a break in at the home of an 86 year old woman who resided in Elizabeth East. When she arrived home in the afternoon of 10 February 2011, she found that someone had broken into her home via the rear laundry window and stolen a number of items valued at approximately $1,049.00. A victim impact statement presented to the court revealed that this elderly lady was traumatised by the break in even though she was not actually at home when the break in occurred. The facts giving rise to the charge of aggravated assault relate to the events which occurred in the evening of 29 June 2012 when police went to a dwelling at Naracoorte and arrested the appellant in respect of an unrelated matter. After he had been arrested and restrained with handcuffs, he complained of not being able to breathe and was removed from the police vehicle and laid on the driveway of the home until ambulance officers could attend. Shortly after 8.00pm that night, following the attendance of ambulance officers, the appellant and the police were engaged in a violent struggle while the police endeavoured to return the appellant to the rear of the police van before transporting him to Mount Gambier. During the course of that struggle, the appellant made several threats to the police officers and kicked one of the police officers in the leg. The appellant is now 24 years old. He has a poor record of offending while he was still a juvenile and his record as an adult reveals that he has continued to offend with reasonable regularity. He has been imprisoned on three occasions prior to being dealt with by the Magistrate for the current offending. One of the previous sentences relevant to the current offending was a sentence of 14 months imprisonment imposed on the appellant for an offence of non-aggravated serious criminal trespass and theft committed on 17 February 2010 for which he was arrested on 22 June 2010. He was convicted of those and other offences in the Elizabeth Magistrates Court on 14 October 2010 and sentenced to a total period of imprisonment for 15 months and two weeks with a non-parole period of six months. As the police apprehension report in respect of that offending shows, the circumstances surrounding the offence of non-aggravated serious criminal trespass on 17 February 2010 are not dissimilar to the current offending. At the time the appellant was on home detention bail. When the offence of non-aggravated serious criminal trespass was committed on 10 February 2011, the appellant was on parole for the earlier offending. The grounds of appeal I turn now to deal with the first complaint that the Magistrate erred in his approach to the appellant’s previous offending. The complaint arose out of remarks made by the Magistrate as follows:[3]In relation to the serious criminal trespass, I make the observation firstly Mr Wilkey has been charged and sentenced on similar offending in the past. This is not his first time before the court on a charge of serious criminal trespass. The last occasion he was before the court for such a charge was on 14 October 2010. He received a term of imprisonment on that charge of 14 months as a head sentence with a non parole period of six months....[5]Although it may have been just another house you broke into Mr Wilkey for that person it is her only home and the effects of what you did to her will be ongoing probably for the rest of her life. Because this is not your only offence of this nature, the sentence to be imposed in my opinion needs to be more than what you previously received for similar offending. For this charge I think a term of imprisonment of 24 months would be appropriate reduced by 25% for the guilty plea.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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