Adamson v Police - [2008] SASC 92

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
ADAMSON v POLICE
[2008] SASC 92
Judgment of The Honourable Justice Layton (ex tempore)
7 April 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
Appeal against sentence – appellant pleaded guilty to three counts of possession of petrol for purpose of inhalation and one court of carrying an offensive weapon – offence of carry an offensive weapon had maximum penalty of $2,500 or 6 months imprisonment – offence of possession of petrol for purpose of inhalation carried a maximum fine of $100 – Magistrate imposed single sentence of imprisonment of 3 months, implicitly utilising s 18A Criminal Law (Sentencing) Act 1988 – whether Magistrate erred in applying a global sentence of imprisonment to an offence to which a period of imprisonment cannot apply – sentence suspended upon appellant entering into a good behaviour bond with conditions – whether sentence was manifestly excessive.
Held: Appeal allowed - Magistrate erred in including offence of possession of petrol for purpose of inhalation as part of global sentence of imprisonment – appellant sentenced afresh – appellant convicted in relation to each offence – in relation to offence of carrying an offensive weapon, appellant to enter into bond to be of good behaviour for a period of 9 months with conditions – appellant discharged without penalty in relation to offences of possession of petrol for purpose of inhalation.
Criminal Law (Sentencing) Act 1988 s 18A; Magistrates Court Act 1991 (SA) s 42; Pitjantjatjara Land Rights Act (Control of Petrol) By-laws 1987 By-laws 3 and 6(1); Summary Offences Act 1953 (SA) s 15(1)(a), referred to.
Hermel v Police (2000) 76 SASR 336, applied.
Police v Russell Adamson (Remarks on Penalty of Magistrate R McInnes, delivered at Ernabella, 16 January 2008), considered.

ADAMSON v POLICE
[2008] SASC 92
Magistrates Appeal: Criminal
LAYTON J:
Introduction

This is an appeal against sentence pursuant to s 42 of the Magistrates Court Act1991 (SA).
On 27 November 2007, the appellant was charged with one count of carrying an offensive weapon and one count of possession of petrol for the purposes of inhalation.
On 16 January 2008, the appellant entered a plea of guilty to each of the two offences. The appellant also pleaded guilty to two counts of possession of petrol for the purposes of inhalation which had been committed on two earlier occasions, namely 28 and 29 December 2006.
The appellant was sentenced to three months imprisonment suspended on an $11 good behaviour bond for a period of 12 months, with conditions. The appellant appealed against this sentence.
Grounds of Appeal
The grounds of appeal were twofold:
·first, that the sentence was manifestly excessive; and,
·secondly, that the learned Magistrate erred in attaching a sentence of imprisonment to the offence of “possession of petrol for the purpose of inhalation”, an offence to which a period of imprisonment cannot apply.
Extension of Time
The order of the Magistrate was made on 16 January 2008 but the notice of appeal was received on 12 February 2008. As a consequence, the appellant seeks an extension of time on the basis that the delay is not the fault of the appellant, the respondent is not prejudiced by the delay and there is merit in the substantive appeal. The respondent indicated that it did not oppose the appellant being granted an extension of time.
Background
The two offences of possessing petrol for the purposes of inhalation occurred, as I indicated earlier, on 28 and 29 December 2006. The third count of possessing petrol for the purpose of inhalation and the one count of carrying an offensive weapon occurred on 27 November 2007.
On 27 November 2007, police officers had been patrolling the Ernabella community in the APY Lands when they noticed the appellant by the road. The appellant beckoned the officers and one of the officers got out of the car. After approaching the appellant the officer smelt petrol on the appellant’s breath and noticed that his eyes were wide and glazed. After that, a second officer got out of the car and the appellant then walked away towards his house. One of the officers asked the appellant whether there was any more petrol in the house. The appellant in response shut the door, thereby preventing the officers from entering. The officers instructed the appellant to open the door. The appellant then approached the officers with an iron bar held aloft in a threatening manner whilst shouting incoherently. The appellant eventually complied with the officers’ instructions and put down the bar. The officers subsequently entered the house to search for petrol. The appellant picked up a plastic container containing petrol, which was sitting by the sink, and continued shouting at the police. Thereafter he put the container to his face and proceeded to sniff from it. He was subsequently arrested.
The Sentencing Process
The appellant pleaded guilty to all offences and, as indicated, the Magistrate imposed a sentence of three months imprisonment suspended on an $11 good behaviour bond, with certain conditions.
Section 15(1)(a) of the Summary Offences Act 1953 (SA) provides that the offence of carrying an offensive weapon without lawful excuse has a maximum penalty of $2,500 or imprisonment for six months. On the other hand, the offence of possession of petrol for the purpose of inhalation is an offence contrary to by-law 3 and by-law 6(1) of the Pitjantjatjara Land Rights Act (Control of Petrol) By‑Laws 1987, which is punishable by a maximum fine of $100.
Before sentencing the appellant, the learned Magistrate made the following remarks:[1]
I have discussed the proposed penalty with Mr Burton, a community elder from Amata present in the courtroom, a well as with the prosecution and defence. As I understand it, the community supports the proposed penalty, which is set up in a way that is likely to work at dealing with the defendant’s petrol sniffing one way or another. Either he takes steps to keep away from petrol when he is in the community, or he will have his access to petrol restricted because he will be in gaol.
[1] Police v Russell Adamson (Remarks on Penalty of Magistrate R. McInnes, delivered at Ernabella, 16 January 2008), [1].
The Magistrate also attached to her remarks a report and attachments. The documents related to her observations and assessment of general problems in dealing with matters on the APY Lands while on circuit. In a general sense these documents explained the interactive process which the Magistrate utilised before pronouncing the sentence in relation to this appellant.
The Magistrate in the report attached to her remarks stated:[2]
After hearing matters put to me after the defendant pleaded guilty, I intimated the specific penalty I was considering to the prosecutor and defence counsel, and why I was considering it. I then gave the prosecutor and defence counsel the opportunity to make such submissions as they considered appropriate about the intimated penalty and my reasoning.
Sentencing is an inquisitorial function. After the prosecutor and defence counsel had the opportunity to make such submissions as they considered appropriate about the intimated penalty and my reasoning, I did not know whether their submissions accurately reflected community views or not. I do not recall my precise words, but I said to Mr Burton that I would like to ask him a question in his capacity as a community elder, not as an interpreter. Would the community support a penalty that meant that either the defendant himself made sure he kept away from petrol sniffing or he went to gaol, where he would not be able to sniff petrol?
Mr Burton answered by nodding, and saying words to the effect that this would have the community’s support.
I then proceeded to sentence Adamson. I imposed the sentence I had intimated and invited the parties to make submissions about.
[2] Police v Russell Adamson (Remarks on Penalty of Magistrate R. McInnes, delivered at Ernabella, 16 January 2008), [21] – [27].
The Magistrate did not impose any fine, being an applicable sentence to the offences of possessing petrol for the purpose of inhalation. Instead, the Magistrate impliedly convicted the appellant of each of the offences and then imposed a single sentence of imprisonment for all offending thereby implicitly utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA).
The power to impose a global sentence of imprisonment is only governed by s 18A of the Criminal Law (Sentencing) Act 1988 (SA). When a global sentence of imprisonment is imposed, each individual offence must be punishable by a term of imprisonment. As noted earlier, the offence of possession of petrol for the purposes of inhalation is only punishable by a fine. Such an offence cannot be one of the offences in relation to which a term of global imprisonment is imposed.[3]
[3] Hermel v Police (2000) 76 SASR 336 337-338 Duggan J.
The Magistrate was in error when she included these offences as part of the global sentence of imprisonment and therefore the sentence must be set aside. Ms Wilkinson, who appeared for the respondent, conceded this error.
In the present circumstances, with the benefit of the remarks made by the Magistrate, which also reflect the views of the community, it is appropriate for me to re-sentence the appellant afresh rather than refer the sentencing back to the Magistrate.
In re-sentencing, Ms Wilkinson for the respondent submitted that I should take into account several factors; namely that it was a conscious decision of the appellant to obtain an offensive weapon from the house and that the appellant was carrying the offensive weapon in potentially volatile circumstances.
Counsel for the appellant, Mr Hill, submitted that the offence of carrying an offensive weapon was committed whilst the appellant was under the influence of petrol. Although the appellant waved the iron bar at the police officers, he put it down after a brief period when he was instructed to do so. The appellant was cooperative and made full admissions to the officers at the police station after his arrest.
The appellant does have a problem with sniffing of petrol, which is demonstrated in his antecedent report. Although Mr Hill was not able to obtain full instructions with regard to the antecedent report, there are certainly a large number of offences related to matters connected with petrol sniffing. However, in more recent times it appears to be occasional. The last offence was 12 months prior to the present offending, and I understand he has not offended since.
Mr Hill further deposed that the appellant was aware of the damaging effect of petrol sniffing to his health and was willing to take steps to try and stop using petrol. This required rehabilitation. Mr Hill submitted before me that the new rehabilitation centre operating at Amata had, since this matter was before the Magistrate, taken the appellant in as its first outpatient. In addition, he further informed me that the service may be able to operate out of Ernabella but, even if that is not the case, the appellant would be able to travel only a relatively short distance to Amata for services.
Conclusion
In view of all of the circumstances, and particularly having regard to the submissions of Mr Hill, which I accept, the offending does not warrant a suspended sentence of imprisonment in respect of the offence of carrying an offensive weapon. This offending was linked to the possession of petrol for the purpose of inhalation.
I consider that the appropriate sentence, in all of the circumstances in relation to the offence, should be the imposition of a bond with conditions. As the appellant has already had a bond imposed for a three-month period since the sentence was imposed, a nine-month bond with conditions would be appropriate. This bond is to commence from the time when it is entered into, which I understand will be next week when the court convenes at Ernabella.
In my view the sentence would also accord with the views expressed by the community as reflected in the Magistrate’s remarks and attached report. The imposition of such a condition of bond will give the appellant an opportunity to rehabilitate himself.
Moreover, I consider that the bond conditions should be similar to those imposed by the Magistrate.
In relation to the offences of possession of petrol for the purpose of inhalation, I consider that convictions should be recorded but that the appellant should be discharged, without penalty, in respect of each offence.
Orders
Therefore, for the reasons given above, I make the following orders:
1That the time within which the appellant be entitled to appeal be extended to 12 February 2008.
2That the appeal is allowed.
3That the sentence imposed by the Magistrate be set aside and the following sentence be imposed in lieu thereof.
4That the appellant be convicted in relation to each offence and that, in relation to the offence of carrying an offensive weapon, he enter into a bond to be of good behaviour for a period of nine months, such period to commence from the date upon which it is entered, but to be no later than Friday, 18 April 2008.
The conditions of the bond are that:
(a)     He be under the supervision of the Department for Correctional Services and comply with all reasonable directions to attend appointments, projects and programs, such appointments, projects and programs to be at the discretion of the supervising correctional officer.
(b)    That he comply with any treatment regimes recommended by the Positive Behaviour Support Unit in Alice Springs operating out of either Amata or Ernabella as part of its outreach program.
(c)    If so directed to comply with any treatment programs recommended by the health service running the detoxification clinic in Amata as part of the outreach program in Ernabella.
5That, with regard to the offence of possession of petrol for the purposes of inhalation, the appellant be discharged without penalty.