WILSON v Police - [2024] SASC 91

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
WILSON v POLICE
[2024] SASC 91
Judgment of the Honourable Justice McDonald (ex tempore)
4 July 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
This was an appeal against sentence.
Having entered a guilty plea to one count of aggravated theft, the appellant was sentenced in the Port Adelaide Magistrates Court to a term of imprisonment of eight months, which was reduced to four months and 24 days on account of the appellant’s early plea of guilty. This sentence was partially suspended upon the appellant entering into a good behaviour bond for a period of 12 months, which he did so on 10 May 2024. As a result of that partial suspension, the appellant was only required to serve one month of this sentence in custody.
The appellant appeals against this sentence on two grounds:
1.      That the sentence imposed by the Magistrate was manifestly excessive, and;
2.      That the Magistrate erred in failing to exercise her discretion to wholly suspend the sentence.
Held, allowing the appeal and resentencing the appellant:
1.      The sentence imposed by the Magistrate was manifestly excessive, and a consideration of the totality of the appellant’s criminal conduct and personal circumstances did not warrant a starting point of eight months imprisonment.
2.      The appellant is re-sentenced to a term of imprisonment of seven days, to be suspended upon him entering a bond to be of good behaviour for a period of six months
Criminal Law Consolidation Act 1935 (SA) s 134(1); Sentencing Act 2017 (SA) s 94(4); Magistrates Court Act 1991 (SA) s 42; Joint Criminal Rules 2020 (SA) r 191.1(1), referred to.
House v the King (1936) 55 CLR 499; Wittwer v the Police [2004] SASC 226; Lowndes v The Queen (1999) 195 CLR 665; R v Wilton (1981) 28 SASR 362; Bugmy v The Queen (2013) 249 CLR 571; Kentwell v The Queen (2014) 252 CLR 601, considered.

WILSON v POLICE
[2024] SASC 91
Single Judge Appeal
McDONALD J (ex tempore):

This is an appeal against a sentence imposed by a Magistrate on 15 April 2024. The appellant was sentenced for one count of aggravated theft[1] of four drinks and one item of food to the value of $28.05.
[1] Criminal Law Consolidation Act 1935 (SA) s 134(1).
In sentencing the appellant, the Magistrate identified a starting point of eight months imprisonment. As the appellant had pleaded guilty at the first available opportunity he was entitled to the maximum discount. The sentence was reduced to four months and 24 days to take into account the guilty plea. The Magistrate partly suspended the term of imprisonment,[2] requiring the appellant to serve one month before being released, with the remaining three months and 24 days to be suspended upon the appellant entering into a good behaviour bond for 12 months.
[2] Sentencing Act 2017 (SA) s…

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 WILSON v Police

Details

AGLC: WILSON v Police [2024] SASC 91
Case: [2024] SASC 91
Decision Date: 4 July 2024

CaseChat Overview and Summary

The appellant in this matter challenges the sentence imposed by the Magistrate, arguing that it was infected by outcome error. The dispute arose following the appellant's guilty plea to charges of shoplifting, for which he was sentenced to a month in prison. The appellant contends that the sentence was manifestly excessive given his personal circumstances and the nature of the offence. The case was heard in the Supreme Court of South Australia, where the appeal against the sentence was considered.

The primary legal issue before the court was whether the sentence imposed by the Magistrate was manifestly excessive or inadequate. The appellant's counsel argued that the sentence did not properly take into account the appellant's personal circumstances, including his role as a primary caregiver for his four young children. Counsel also submitted that the nature of the offence, which involved the theft of minor items, did not warrant a custodial sentence. The Crown, on the other hand, contended that the sentence was appropriate given the appellant's criminal history and the need to deter similar conduct.

The court, in considering the appeal, examined the principles established in Lowndes v The Queen, which emphasise the importance of the discretion afforded to sentencing judges. The court acknowledged that it should not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion differently. However, the court also noted that the sentencing judge must consider the relevant factors and provide reasons for the sentence imposed. In this case, the court found that the Magistrate had failed to adequately consider the appellant's personal circumstances, particularly his role as a primary caregiver for his children, which could have been a significant mitigating factor. The court concluded that the sentence was manifestly excessive and ordered a retrial for sentencing.

The court ordered that the appellant be re-sentenced by a different Magistrate, who would have the opportunity to properly consider the appellant's personal circumstances and the nature of the offence. The appellant would remain on bail pending the re-sentencing hearing.

Orders

Orders of the court

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Background

Background to the litigation

It is the appellant’s submission that the sentence imposed by the Magistrate was infected by outcome error. In Lowndes v The Queen, the Court observed that:[6]… a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[6] (1999) 195 CLR 665 at [15].The facts At about 10.00am on Saturday, 9 March 2024, the appellant attended at the On The Run at Brompton in the company of another. Between them the appellant and his co-offender stole two protein honeycomb chocolate drinks, two raspberry Coke drinks and one John West tuna lunch kit. This offence was detected when police attended at the On The Run to obtain a statement in an unrelated matter. On arriving, the police saw the two offenders leaving the service station. The police viewed the CCTV footage and ascertained that the two offenders had taken items from the store without making payment. At about 11.20 that morning the appellant was arrested and interviewed. He made full admissions. He said that he was aware that it is an offence to take items without making payment, however, he was not in the correct frame of mind at the time. Following his arrest the appellant was given police bail to appear in the Port Adelaide Magistrates Court on 9 April 2024. He did not appear and a warrant was issued for his arrest. The warrant was executed on Friday, 12 April 2024 and the appellant remained in police custody awaiting court on Monday, 15 April 2024. On that date the appellant pleaded guilty and the Magistrate sentenced him to the sentence that I have set out. Unfortunately, despite an appeal being lodged four days later, the appellant remained in custody and served the one month imprisonment. He, in fact, spent his 40th birthday incarcerated. On 10 May 2024 the appellant entered into the suspended sentence bond. He now has a further three months and 24 days imprisonment hanging over his head until April of next year.The appellant’s personal circumstances I turn to the appellant’s personal circumstances. The appellant is a 40-year-old Aboriginal man. Leading up to the commission of this offence the appellant had the care of five children, four of whom are young. Whilst the appellant was in custody his 17-year-old daughter was looking after the other four children. It would seem that during that time the children’s mother had moved from Ceduna to Adelaide to assist in the care of them once she was in a position to arrange suitable accommodation. I am advised that now that the appellant has been released from custody, he and the children’s mother are jointly caring for them. The appellant has a not insignificant criminal history. Relevantly, he has a number of convictions for offences of dishonesty. These are set out in the table below:

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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