By-election cost a factor in MP’s sentencing process
A judge has agreed to hear sentencing submissions on state MP Troy Bell but may revisit his decision if given details on by-election costings.
The cost and inconvenience of staging a by-election may delay the sentencing of state independent MP Troy Bell who is convicted of theft and dishonesty.
Last September, a South Australian District Court jury found Bell, 51, guilty of 20 counts of theft and five aggravated counts of dishonest dealings, committed between 2009 and 2013.
Prosecutors had alleged that he abused his position as an Education Department employee to steal more than $430,000 from not-for-profits that helped vulnerable school children, and used it to fund property investments and pay debts.
On Friday, Judge Rauf Soulio delivered an interim decision on Bell’s application to stay the sentencing process until the completion of an appeal in the Court of Appeal, which is listed to start on March 13.
“The application for a stay was primarily based on the fact that the defendant is an elected member of parliament in the lower house,” Judge Soulio said while deciding sentencing submissions could go ahead.
The member for Mt Gambier has represented the South-East seat since 2014. He quit the Liberal Party and became an independent after he was charged in 2017.
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Proceeding to sentence “may well require him to be expelled from the house and a by-election conducted”, Judge Soulio said.
Under the Criminal Law Consolidation Act, there is a maximum penalty of 10 years in prison for a count of theft, while an aggravated offence of dishonest dealings with documents carries a maximum sentence of 15 years in prison.
Nicholas Healy, for Bell, previously told the court that if his client was jailed before the Court of Appeal heard his case, “parliament’s hand would be forced”.
“Should sentence be passed – and indeed if that sentence results in a sentence of imprisonment – a by-election will automatically be triggered on the basis that he is absent from parliament,” Mr Healy said.
“If Mr Bell is then successful on his appeal and a by-election has been automatically triggered, and someone else then occupies his seat, he has no recourse to reclaim that seat.”
Judge Soulio had “not been provided with any information as to the extent of the cost and inconvenience of conducting a by-election”.
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“I anticipate, as a matter of general knowledge, that such an exercise is indeed an expensive one,” he said.
Matters should generally proceed to sentence to avoid the inconvenience of two potential appeals – one against conviction and if unsuccessful, the second appeal against sentence, he said.
“However, that rule is not immutable, and circumstances may exist where there are good reasons not to proceed to sentence,” he said.
“Here, I propose to take a hybrid approach and set the matter for submissions.”
Those submissions will be heard on March 20.
Given the complexity of the matter and the material he anticipated he would need to consider, Judge Soulio said he would then reserve his sentencing decision.
“If I am provided with further information as to the actual cost and scope of the task of holding a by-election, then I may revisit this interim ruling,” he said.
Mr Healy, who said he would need two hours to make submissions, indicated that a report on his client by a forensic psychologist had been received on Thursday and would be submitted.
Outside court, Bell said that “unfortunately, I can’t say nothing about it” because an appeal was underway.
