Delahunty v. Sinden

Australia

22.03.2019

Civil

In deciding an appeal, Court may set aside or vary the decision of the Court of Summary Jurisdiction and the sentence imposed

The Appellant pleaded guilty in the Magistrate's Court to four charges of trespass and two charges of possessing drug paraphernalia in which there were prohibited drugs. He was sentenced on 12 December 2017 to a total effective sentence of 6 months' imprisonment, suspended for a period of 8 months (the ISO). The appellant appealed from that sentence on two grounds: (1) the learned magistrate erred in law in imposing a sentence of 6 months' imprisonment, contrary to Section 86 of the Sentencing Act 1995; (2) the magistrate erred in law in failing to reduce the Appellant's sentence to reflect the benefit to the State and any witnesses of his plea of guilty, as required by Secction 9AA of the Sentencing Act.

Section 14(1) of the Criminal Appeals Act, 2004 provides that in deciding an appeal, this Court may, among other things, set aside or vary the decision of the Court of Summary Jurisdiction and the sentence imposed, order made or thing done as a result of the decision. Further, the court may substitute a decision that should have been made by the Court of Summary Jurisdiction.

The term 'decision' is defined to include a sentence imposed, or order made, as a result of a conviction. Section 14(2) further provides that, even if a ground of appeal might be decided in favour of the Appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. A substantial miscarriage of justice for the purpose of Section 14(2) of the Criminal Appeals Act, will occur where a magistrate purports to exercise a power in sentencing that has not been conferred by the Sentencing Act. Accordingly, in present case, the ISO made by the magistrate must be set aside.

The Appellant has been charged with offences allegedly committed in December 2017 and January 2018, but he has not been charged with any offence since that time - that is, from the time when he assumed responsibility for the care and custody of his children. The Sentencing Act requires that an offender only be sentenced to a term of imprisonment, if it is the only appropriate sentencing option. A non-custodial sentence was available having regard to the fact that the ISO had expired, the Appellant had completed some of the requirements of the order and he had apparently taken steps towards his rehabilitation. The Appellant has an incentive to continue with his rehabilitation and not engage in anti-social and criminal behaviour given his responsibility for the care and custody of his children.

The pre-sentence report the court received supported a non-custodial sentence. However, the report noted the Appellant had not completed programme requirements imposed under the ISO. The Appellant has a history of substance abuse and would, benefit from further counselling to deal with his problems with substance use. It is in his interests, and the interests of the community, that he be given an opportunity to participate in any programme that may be available to address his substance use in an environment that supports and reinforces his incentives not to reoffend.

It was not appropriate to vary the ISO or to impose a more severe punishment. Appellant's sentence is set aside. The Appellant is resentenced to a community-based order, with programme and supervision requirements, for a period of 6 months.

Tags : Sentence Imposition Legality

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