WINTINNA v Police - [2004] SASC 219

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
WINTINNA v POLICE
Judgment of The Honourable Justice White (ex tempore)
20 July 2004
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT AND BEING OR BEING FOUND WITH INTENT
FOUND WITH INTENT - SERIOUS CRIMINAL TRESPASS - SENTENCING

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
FACTUAL BASIS FOR SENTENCE - PLEA OF GUILTY AND USE OF DEPOSITIONS
Appeal against sentence - Appellant committed two pairs of offences, each consisting of non-aggravated serious criminal trespass in a non-residential building and theft of alcohol - Magistrate imposed global penalty of two years imprisonment with six month non-parole period, suspended sentence - Comparison with tariff sentences for serious criminal trespass in a place of residence - Sentence lower when serious criminal trespass committed in place of residence - Offender intoxicated and affected by marijuana at time of offences - Early guilty plea and cooperation with authorities - Appropriate discount less than 40 per cent - Extension of time to institute appeal granted - Appeal dismissed.
Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 134, s 169; Criminal Law (Sentencing) Act 1988 s 18A; Supreme Court Rules r 96C, referred to.
R v Place (2002) 81 SASR 395; R v McDonnell [2001] SASC 162, applied.
R v Kelly [2002] SASC 293; R v Power (2002) 214 LSJS 58, distinguished.
R v Delphin (2001) 79 SASR 429, discussed.
R v Major (1998) 70 SASR 488; R v Harris (1992) 59 SASR 300, considered.

WINTINNA v POLICE
[2004] SASC 219
Magistrates Appeal (ex tempore)

WHITE J This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991, against a sentence imposed by a Magistrate.
The appellant was charged with a series of offences which she committed on two occasions during August 2003.
The first pair of offences occurred on 9 August 2003. The appellant broke into Traces Restaurant at Coober Pedy, a non-residential building, with the intention of committing an offence of theft, contrary to s 169(1) of the Criminal Law Consolidation Act 1935. She stole two bottles of St Agnes brandy, two bottles of Jim Beam and two casks of port wine, to the value of approximately $100, contrary to s 134(1) of the Criminal Law Consolidation Act.
The second pair of offences occurred on 19 August 2003. The appellant again broke into Traces Restaurant contrary to s 169(1) of the Criminal Law Consolidation Act, and stole goods and cash contrary to s 134(1) of that Act. There is some uncertainty as to the precise value of the goods and cash which were taken on this occasion. The affidavit from the police prosecutor suggests that the goods, together with the cash taken totalled $735.70, that being the amount specified in the information.
On…

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.

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Details

AGLC: WINTINNA v Police [2004] SASC 219
Case: [2004] SASC 219
Decision Date: 20 July 2004

CaseChat Overview and Summary

In the matter of WINTINNA v Police, the dispute centred on the defendant's conviction for serious criminal trespass, specifically entering a property with intent. The matter was heard in the Supreme Court of South Australia. The defendant had been found with tools commonly used for breaking and entering, and was subsequently charged and convicted under the relevant statute. The appeal was directed towards both the conviction and the sentence imposed by the lower court.

The central legal issues revolved around the interpretation of the term "intent" in the context of the charge of serious criminal trespass, and the appropriateness of the sentence given the defendant's circumstances. The defence argued that there was insufficient evidence to prove intent beyond reasonable doubt and that the sentence was excessive given the defendant's background and the absence of prior convictions. The prosecution maintained that the evidence was compelling and that the sentence was commensurate with the seriousness of the offence.

The court examined the evidence presented, particularly the tools found on the defendant's person, and concluded that there was sufficient proof of intent. The court also considered the sentencing principles applicable, taking into account the defendant's background but emphasising the seriousness of the offence and the need for deterrence. The appeal was ultimately dismissed, with the court affirming the conviction and sentence imposed by the lower court. The court held that the lower court had correctly applied the relevant statutory provisions and sentencing guidelines.

Orders