WILSON v Police - [2013] SASC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WILSON v POLICE
[2013] SASC 48
Judgment of The Honourable Justice White
12 April 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - OTHER OFFENSIVE WEAPONS - POSSESSING, CARRYING OR BEING FOUND ARMED
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
The appellant pleaded guilty to one count of carrying offensive weapons - having been informed of a disturbance occurring between his family members and another family at a shopping centre, the appellant went to the shopping centre taking two poles with him - the appellant told attending police of the presence of the weapons in his vehicle.
The Magistrate recorded a conviction and imposed a sentence of imprisonment for 21 days, but suspended that sentence upon the appellant entering into a bond, in the sum of $400, to be of good behaviour for a period of two years - the appellant appeals against that sentence, contending that the Magistrate should not have imposed a sentence of imprisonment at all, should not have recorded a conviction, and that the two year term of the bond is excessive - the appellant also contends that the whole of the sentence is manifestly excessive.
Held (allowing the appeal in respect of the term of the bond only):
(1) having regard to all the circumstances of the appellant's offending and history, it was open to the Magistrate to impose a term of imprisonment (at [8]);
(2) the Magistrate did not err in the exercise of his discretionary judgment in deciding to record a conviction (at [18]);
(3) the Magistrate erred in fixing the term of the bond at two years - the two year term of the bond is disproportionate to the 21 days of imprisonment (at [27]);
(4) although the sentence can be regarded as severe, it should not (save for the duration of the bond) be characterised as manifestly excessive (at [28]);
(5) the Magistrate's stipulation of a two year term for the bond is set aside, and a term of eight months is substituted (at [29]).
Summary Offences Act 1953 (SA) s 21C; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 11, s 16, s 39, s 40, referred to.
Flett v SA Police (Unreported, Supreme Court of South Australia, King AJ, 5 August 1997, Judgment No S6291); Griffin v Police [2005] SASC 337; Markarian v The Queen (2005) 228 CLR 357; R v Austin (1985) 121 LSJS 181; R v Davidson [2011] SASCFC 132; R v De Simoni (1981) 147 CLR 383; R v Ellis (1986) 6 NSWLR 603; R v Fernando (1992) 76 A Crim R 68; R v Major (1998) 70 SASR 488; R v Nemer (2003) 87 SASR 168; R…

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 [2013] SASC 48
Case: [2013] SASC 48
Decision Date: 12 April 2013

CaseChat Overview and Summary

In the matter of Wilson v Police, the appellant appealed against his sentence, arguing that the Magistrate had erred in imposing a sentence of imprisonment, recording a conviction, and setting the term of the bond at two years. The appellant pleaded guilty to carrying offensive weapons at a shopping centre, where he had gone armed with two poles in response to a family dispute. The Magistrate convicted the appellant and imposed a sentence of imprisonment for 21 days, which was suspended on the condition that the appellant entered into a bond of $400 to be of good behaviour for two years. The appellant argued that the Magistrate should not have imposed a sentence of imprisonment at all, should not have recorded a conviction, and that the two year term of the bond was excessive.

The court was required to determine whether the Magistrate had erred in imposing a sentence of imprisonment, recording a conviction, and setting the term of the bond at two years. The court held that the Magistrate was entitled to impose a term of imprisonment, and did not err in recording a conviction. However, the two year term of the bond was disproportionate to the 21 days of imprisonment, and therefore the Magistrate had erred. Although the sentence could be regarded as severe, it should not be characterised as manifestly excessive, save for the duration of the bond.

The court substituted the term of the bond from two years to eight months, while upholding the conviction and sentence of imprisonment. The court found that the Magistrate was entitled to consider the appellant's history and the nature and circumstances of his offending when imposing a sentence. The court also found that the Magistrate did not err in recording a conviction, as the appellant had pleaded guilty to the offence. However, the court found that the two year term of the bond was excessive, and was disproportionate to the 21 days of imprisonment. The court held that the Magistrate's stipulation of a two year term for the bond was set aside, and a term of eight months was substituted.

In conclusion, the court allowed the appeal in respect of the term of the bond only, substituting a term of eight months for the two year term originally imposed by the Magistrate. The court upheld the conviction and sentence of imprisonment, finding that the Magistrate was entitled to consider the appellant's history and the nature and circumstances of his offending when imposing a sentence. The court also found that the Magistrate did not err in recording a conviction, as the appellant had pleaded guilty to the offence. However, the court found that the two year term of the bond was excessive, and was disproportionate to the 21 days of imprisonment.

Orders

Orders of the court

Held (allowing the appeal in respect of the term of the bond only):

(1) having regard to all the circumstances of the appellant's offending and history, it was open to the Magistrate to impose a term of imprisonment (at [8]);

(2) the Magistrate did not err in the exercise of his discretionary judgment in deciding to record a conviction (at [18]);

(3) the Magistrate erred in fixing the term of the bond at two years - the two year term of the bond is disproportionate to the 21 days of imprisonment (at [27]);

(4) although the sentence can be regarded as severe, it should not (save for the duration of the bond) be characterised as manifestly excessive (at [28]);

(5) the Magistrate's stipulation of a two year term for the bond is set aside, and a term of eight months is substituted (at [29]).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WHITE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

Full text does not contain this section.