Yates v Police - [2000] SASC 326

YATES v POLICE

[2000] SASC 326

Magistrates Appeal

1................ LANDER J....... This is an appeal from the Magistrates Court sitting at Christies Beach. The appellant was convicted and sentenced for the offence of larceny on 1 December 1997 in relation to an offence said to be committed on 16 December 1996. She was sentenced to be imprisoned for nine months but the sentence was suspended on her entering into a good behaviour bond for a period of two years in the sum of $400. She was ordered to pay compensation of $553.

Originally in a Notice of Appeal dated 16 May 2000 the appellant only appealed against sentence. She sought in that Notice of Appeal an extension of time within which to appeal. After her solicitor had examined the Court file she filed an amended Notice of Appeal dated 29 June 2000, seeking to appeal against both conviction and sentence and on 30 June she made an application seeking an extension of time within which to appeal. During the hearing of the appeal the appeal against conviction was abandoned. The matters to be decided therefore are whether the appellant should be granted an extension of time within which to appeal against sentence, and if so, whether the sentence should be set aside.
The appellant was charged and on 1 December 1997 pleaded guilty to an offence of larceny, committed on 16 December 1996.
She went to Radio Rentals and using a false name she entered into a rental purchase agreement for a television set, a video set, a hi-fi set and furniture to accommodate those items to the total value of $3,646. Those goods were delivered to a nominated address and the appellant signed a receipt for the goods using a false name. Immediately after delivery all the property was moved to different premises. It was alleged and not disputed that Ms Yates made no payments by way of rental payments.
When Radio Rentals sought to recover the goods they approached the person whose name the appellant had given. That person knew nothing about the matter. Police eventually apprehended Ms Yates and recovered the goods. When first interviewed Ms Yates denied any involvement in the offences but later made full admissions.
The appellant had no prior convictions for offences of dishonesty.
The Magistrate ordered and obtained a pre-sentence report.
That report showed that the appellant was 30 years of age and the fourth of five children. She married her husband in 1990 and there is one child of the marriage who was in the care of the appellant.
The appellant’s husband had become violent towards her and the relationship had ended.
The appellant’s husband continued to harass the appellant until December 1996 when she returned to live with her parents.
At the time she came before the Magistrate she was involved in a de facto relationship with a gentleman she had known in her employment for many years. She was pregnant and she was to undergo a caesarean section…

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 Yates v Police

Details

AGLC: Yates v Police [2000] SASC 326
Case: [2000] SASC 326
Decision Date: 27 September 2000

CaseChat Overview and Summary

In Yates v Police, the appellant was convicted and sentenced for the offence of larceny by the Magistrates Court at Christies Beach. The appellant appealed against the sentence, initially only appealing against the sentence before later amending the appeal to include both conviction and sentence. The appeal against conviction was subsequently abandoned, leaving only the question of whether an extension of appeal time should be granted and whether the sentence should be set aside.

The court had to determine whether the appellant should be granted an extension of time to appeal against sentence and if so, whether the sentence should be set aside. The appellant argued that the Magistrate failed to consider sentencing options other than imprisonment, and that the sentence was manifestly excessive. The appellant also sought an extension of time on the grounds that she was unrepresented by counsel at the time of sentencing and was not advised of her right to appeal within the appropriate timeframe.

The court considered the four matters necessary to exercise its discretion to extend the time for compliance with the Rules: the length of the delay, the explanation for the delay, any prejudice suffered by the opposing party, and whether there were any prospects that the appeal would be successful. The court found that the delay was very lengthy, but that it was not appropriate to refuse the appellant an extension of time if the sentence was manifestly excessive. The court also found that the Magistrate was not obliged to allow the appellant to provide information before imposing sentencing and that the sentence imposed by the Magistrate was not excessive. Therefore, the appeal against sentence would fail, and it would be inappropriate to grant an extension of time in this case.

The court made the following orders: (1) The extension of time to appeal is refused. (2) The appeal is dismissed.

Orders