Wilson v Police - [2008] SASC 212

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WILSON v POLICE
[2008] SASC 212
Judgment of The Honourable Justice Gray
11 August 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - PROPERTY OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - RECOGNISANCES - GENERALLY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - DISCRETION TO NOT RECORD CONVICTION
Appeal against sentence – appellant pleaded guilty to offence of unlawful possession of motor vehicle keys, contrary to section 41(1) Summary Offences Act 1953 (SA) – defendant convicted by magistrate and sentenced to term of imprisonment of 2 months – sentence suspended on appellant’s entering a 18-month, $500 good behaviour bond – whether sentence manifestly excessive.
Held, allowing the appeal: Magistrate erred in imposing sentence of imprisonment – appellant’s conviction should be set aside – appellant should be re-sentenced – relevant factors to sentencing discretion include appellant’s Aboriginality, youth, intelligence, time already spent in custody and prospects of rehabilitation – appellant released without conviction on his entering a supervised three-year good behaviour bond.
Summary Offences Act 1953 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 11(1) and s 38, referred to.
Bastian v Police [2008] SASC 91; Gannon v Harper (SC(SA), Bollen J, 20 July 1989, Jud No 1627, unreported); James (1985) 14 A Crim R 364; R v Clarke (2004) 89 SASR 13; R v Doecke (1999) 205 LSJS 304; R v JB [2007] SASC 67; R v O’Keefe [1969] 2 QB 29; R v Palliaer (1984) 35 SASR 569; R v Vasin (1985) 39 SASR 45 ; Skipper (1992) 64 A Crim R 260; Wood v Samuels (1974) 8 SASR 465, considered.

WILSON v POLICE
[2008] SASC 212
Magistrates Appeal
GRAY J:

This is an appeal against sentence.
Background
The defendant and appellant, Cecil Spencer Wilson, pleaded guilty to the offence of unlawful possession contrary to section 41(1) of the Summary Offences Act 1953 (SA).[1] The particulars of the offence were that on 21 February 2008 at Koonibba, the defendant had in his possession vehicle keys which were reasonably suspected of having been stolen or obtained by unlawful means.
[1] Section 41(1) of the Summary Offences Act 1953 (SA) provides:
“A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means, is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.”
The defendant was convicted and sentenced by a Magistrate on 1 April 2008 to a term of imprisonment of two…

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 [2008] SASC 212
Case: [2008] SASC 212
Decision Date: 11 August 2008

CaseChat Overview and Summary

The appeal in Wilson v Police concerned the sentence imposed on Cecil Spencer Wilson, who had pleaded guilty to the offence of unlawful possession of motor vehicle keys under section 41(1) of the Summary Offences Act 1953 (SA). The conviction was made on 1 April 2008, and Wilson was sentenced to a two-month imprisonment term, which was suspended pending his entry into an 18-month, $500 good behaviour bond. The appeal focused on the contention that the sentence was manifestly excessive.

The central legal issue was whether the sentence imposed by the Magistrate was appropriate and whether it reflected a proper exercise of the sentencing discretion under the circumstances of the case. The appeal specifically questioned the appropriateness of a custodial sentence given Wilson's background, including his Aboriginality, youth, intelligence, time already spent in custody, and prospects for rehabilitation.

The Court allowed the appeal and set aside the sentence imposed by the Magistrate. It held that the Magistrate had erred in imposing a sentence of imprisonment. The relevant sentencing factors included Wilson's Aboriginality, youth, low intelligence, time already spent in custody, and prospects of rehabilitation. The Court considered these factors and found that a non-custodial sentence was more appropriate. Wilson was re-sentenced to be released without conviction, on the condition that he enter a supervised three-year good behaviour bond. The Court emphasized the importance of assisting Wilson in acquiring literacy and numeracy skills and receiving instruction in alcohol and drug abuse, to support his rehabilitation and reintegration into the community.

The final orders of the Court were that the appeal was allowed, the sentence imposed by the Magistrate was set aside, the conviction recorded by the Magistrate was set aside, and Wilson was re-sentenced to be released without conviction, on his entry into a supervised three-year good behaviour bond, with specific conditions for his rehabilitation.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against sentence.Background The defendant and appellant, Cecil Spencer Wilson, pleaded guilty to the offence of unlawful possession contrary to section 41(1) of the Summary Offences Act 1953 (SA).[1] The particulars of the offence were that on 21 February 2008 at Koonibba, the defendant had in his possession vehicle keys which were reasonably suspected of having been stolen or obtained by unlawful means. [1] Section 41(1) of the Summary Offences Act 1953 (SA) provides:“A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means, is guilty of an offence.Maximum penalty: $10 000 or imprisonment for 2 years.” The defendant was convicted and sentenced by a Magistrate on 1 April 2008 to a term of imprisonment of two months. This sentence was suspended on the defendant’s entry into a $500.00, 18-month good behaviour bond. In determining this sentence the Magistrate had regard to the defendant’s plea of guilty and the fact that he had spent 41 days in custody on remand. When sentencing, the Magistrate remarked:I begin by saying that you have helped the court by pleading guilty to this charge of unlawful possession. I am aware that this is your first charge as an adult person and it happened quite soon after you turned 18. You were found in possession of car keys to a particular vehicle. You apparently obtained those keys through your cousin and you knew that he at the time did not have a motor car. You should have realised that he had no real excuse or entitlement or right to have those keys. You have a long record of quite serious dishonesty offending as a youth and there are still some matters which are outstanding. Ignoring those, you have quite a record for a person of your age which include matters of unlawful possession, theft and housebreaks. I remind myself that you are not to be punished again for that. I am aware that you have spent nearly six weeks in custody, most of it in either Yatala or Port Augusta Gaol, that has come as something of a shock to you.The Pre-Sentence Report is a very helpful report. ... You have had your ups and downs and difficulties while you have been a child and a teenager. The school system seems to have failed you and you have reached the age of 18 where you have trouble filling out forms, reading and writing and you have trouble working with figures. I think it is very important that you have the chance to learn how to do those basic things because you will be at a big disadvantage if you do not know how to fill out your own forms and do your own sums....As I said, this is your first adult offence. Sadly, it is a continuation of the stream of offending and pattern of offending which has developed during your teenage years. I think that the appropriate starting point is a short sentence of imprisonment and allowing for your plea I would impose a sentence of a little more than 3 months. Allowing for the time you have spent in custody I will reduce that to 2 months. I think that there are good reasons to suspend the sentence and to release you on a bond with conditions of supervision and conditions that you take part in programs to learn some skills and to try to break the cycle. What you do about that is eventually up to you, but it gives you the chance to change your ways if that is what you want to do. If you offend again during the time of the bond you will have to come back to court and probably go back to gaol for 2 months.The Appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In all the circumstances, I propose, pursuant to section 38 of the Criminal Law (Sentencing) Act, to exercise my discretion not to record a conviction. I consider it appropriate for the defendant to be released on a supervised three-year good behaviour bond. It is to be a term of his bond that he undertake such courses as are recommended by his supervising Correctional Services officer. A copy of these reasons should be forwarded to his supervising officer. It is to be hoped that the defendant will be assisted in acquiring literacy and numeracy skills as well as instruction in regard to alcohol and drug abuse. It is in the community’s interest that the defendant be assisted in his rehabilitation and, to that end, special efforts should be made in the assistance provided to the defendant. Conclusion This appeal is allowed. The sentence imposed by the Magistrate is set aside. The conviction recorded by the Magistrate is set aside. The defendant is re-sentenced. He is to be released without conviction on his entry into a supervised three-year good behaviour bond.

Ratio Decidendi

Legal Principle Established

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