Aird v Police No. Scgrg-99-128 Judgment No. S78

AIRD v POLICE
SASC [1999] 78

Criminal

Debelle J (ex tempore)

This is an appeal against sentence.
On 11 January 1999 the appellant was sentenced in the Clare Magistrates Court for a number of offences which all occurred on 7 May 1998 at Clare. He was also charged with another offence which occurred on 13 May at Clare. The first series of offences arose out of incidents in which the appellant was involved on the night of 7 May. For those offences, and the offence on 13 May, he was sentenced to varying periods of imprisonment which totalled 15 months. I will in a moment refer to the particular offences and the penalties imposed in respect of each.
On 11 January the appellant also admitted to having acted in breach of a bond ordered as a condition of a suspended sentence of imprisonment on 10 March 1997. The suspended sentence was for a period of 14 months. It was a condition of the order that the appellant enter into a bond to be of good behaviour for a period of two years. The magistrate revoked the suspension of the sentence and ordered that the sentence be served cumulatively upon the period of 15 months imprisonment, making a total sentence of 29 months imprisonment. The magistrate fixed a non-parole period of 18 months.
The appellant appeals against the sentence and the non-parole period on the ground that they are manifestly excessive and on other grounds.
At about 8 pm on 7 May 1998 the appellant jumped the bar in the Bentley's Hotel, Clare, opened the till and stole $243. In entering the hotel he was in breach of an order barring him from entering that hotel. Witnesses described him as being quite drunk. The appellant made no attempt to escape detection. Having left Bentley's Hotel, he went to the Clare Hotel where he brought a round of drinks for those then in the hotel. He also repaid someone a debt of $56. A little later he was arrested at the Clare Hotel. Police recovered $236.70 of the money stolen from Bentley's Hotel. There was thus a shortfall of just over $6. He was released on bail at about 10 pm
Later, at about 11.30 pm that evening, the appellant stole a car belonging to a Mr Marsh. Mr Marsh had stopped outside Bentley's Hotel. He had got out of his car, leaving the keys in the ignition and the engine running. He went into the hotel to buy a packet of cigarettes. The appellant took the opportunity to steal the car. The appellant drove the car for about one quarter of an hour before he ran off the road and into a fence causing extensive damage to both the car and the fence. The appellant was again arrested. A breath analysis test disclosed a reading of 0.192 per cent. At the time the appellant was disqualified from holding or obtaining a driving licence.
On 13 May the appellant stole a set of darts valued at $39.95 from a shop in Clare. He was detected as he was leaving the shop. The darts were recovered.
The appellant was charged with a number of offences. He pleaded guilty to some of them in consequence of which the remaining complaints were withdrawn. I list the offences to which he pleaded guilty noting at the same time the penalty ordered by the magistrate in respect of each:
Using a motor vehicle without the consent of the owner, contrary to s86a of the Criminal Law Consolidation Act 1935. The appellant was sentenced to eight months imprisonment. He was also disqualified from holding or obtaining a driving licence for a period of two years and six months.
Driving whilst so much under the influence of intoxicating liquor as to be incapable of exercising effective control over the vehicle, contrary to s47 of the Road Traffic Act 1961. The appellant was fined $750 with costs amounting to $146. In addition, he was disqualified from holding or obtaining a driving licence for a period of three years commencing on the date of the sentence.
Driving whilst disqualified from holding or obtaining a driving licence, contrary to s91 of the Motor Vehicles Act 1959. For that offence he was sentenced to ten days imprisonment to be served concurrently with the period of imprisonment already ordered.
Larceny of the sum of $243 from Bentley's Hotel, contrary to s131 of the CriminalLaw Consolidation Act 1935. He was sentenced to four months imprisonment cumulative upon the earlier sentence of imprisonment.
Entering licensed premises from which he had been barred, contrary to s125 of the Liquor Licensing Act 1997. He was convicted without penalty and ordered to pay costs amounting to $146.
Larceny of one set of darts, contrary to s131 of the Criminal Law Consolidation Act 1935. The appellant was sentenced to three months imprisonment cumulative upon the earlier periods of imprisonment.

It will have been noticed that those periods of imprisonment total 15 months.

It will have also been noticed that these offences occurred whilst the appellant was plainly drunk. He had been drinking alcohol on that evening. He had also ingested a drug, Temazepam. Whilst that might explain his conduct, it does not excuse it. All that can be said in his favour is that these would not have been premeditated acts but rather the acts of someone whose inhibitions were lowered by the combined effect of the alcohol and Temazepam.
The appellant has a very extensive criminal record extending over more than 20 years. It includes a variety of offences. He has received a number of suspended sentences. On at least two occasions, in the previous two years, applications have been made to enforce a breached bond but the court had refrained from taking that course. It is obvious that the appellant has learned nothing from the leniency which has been extended to him in the past.
The appellant was represented at the hearing before the magistrate by Mr Kerin. Mr Kerin tendered three reports, one from a psychiatrist and the other two from the appellant's general practitioner. I agree with the magistrate that the psychiatrist’s report discloses little which is particularly unusual about the appellant. He has had, as unfortunately many others have, an extensive history of drug and alcohol abuse. Much of his offending, like the present offences, appear to be alcohol-related. The psychiatrist expressed the view that there was a risk that imprisonment might cause the appellant to develop a major depressive disorder which may require psychiatric treatment. The appellant's general practitioner agreed with that conclusion. The magistrate had regard to these reports but concluded that the seriousness of the offending required that the appellant serve an extensive period in prison. The psychiatrist's report had also recommended a formal rehabilitation program. That program had already begun on 11 June 1998 in that the appellant had started on a prescribed methadone program.
Mr Kernahan, who appeared for the appellant on this appeal, submitted that the magistrate had failed to have sufficient regard to the question of rehabilitation when sentencing the appellant. In this respect, he pointed to the fact that the appellant had already commenced his own rehabilitation, in particular by undertaking the prescribed methadone program. In my view, the magistrate did have regard to that factor but concluded the seriousness of the offending warranted these penalties. It is apparent from his remarks, when read as a whole, that the appellant had had opportunities in the past to mend his ways and that the magistrate believed that he had exhausted any opportunity for further leniency.
There were sound reasons for that view. This was plainly a course of inexcusable offending. It was apparent that the appellant had learned nothing from being arrested once that night. Subsequent to his arrest, he committed what were, on any view, the more serious offences. The fact that the appellant was drunk does not excuse his conduct. Furthermore, this appellant has already had opportunities to reform his conduct. He has received a number of bonds and suspended sentences. He is obviously not willing to learn from merciful penalties in the past. The magistrate was entitled to conclude that the time for rehabilitation had passed and that the appellant had to serve a custodial sentence. As to the appellant's medical condition, facilities exist in the prison for him to receive whatever treatment is prescribed, and, indeed, to obtain medical assistance and psychiatric assistance, if that is required. For like reasons, I do not accept Mr Kernahan's submission that the magistrate's sentencing discretion had miscarried in that he had failed to suspend any of the sentences of imprisonment.
Mr Kernahan identified four sentences which were, he submitted, manifestly excessive.
The first was the sentence of four months imprisonment for stealing $243 from Bentley's Hotel at Clare. He stressed that all but about $6 had been recovered and that this was an offence for which the appellant could hardly have expected to have escaped detection, since the likelihood was that he would have been recognised by at least one or two persons in the hotel. Furthermore, the appellant had made no attempt to escape detection. Although this was a particularly foolish crime, for the reasons which I have just given, it is sufficiently serious to attract a firm penalty. The penalty is very severe. In the circumstances, I think that a sentence of two months imprisonment would have been more than enough for this particular offence. I have little hesitation in concluding that the penalty is, therefore, manifestly excessive. I would reduce the penalty by one half to a penalty of two months imprisonment.
The next sentence was the term of eight months imprisonment for the offence of illegally using a motor vehicle. Mr Kernahan stressed that the appellant had not committed a like offence for a period of about 20 years. However, as Mr Ahern, who appeared for the respondent, fairly pointed out, the appellant's offending over the past 20 years displays a disregard for the interests of others and their property. Furthermore, regard must be had to the fact that the motor vehicle was extensively damaged in the course of this driving. Mr Kernahan also submitted that the magistrate had failed to give any effect to the appellant's plea of guilty. I understand the force of that submission. However, at the same time, these are the remarks of a magistrate made in the course of disposing of a busy list. The principle of a discount for a plea of guilty is so well-known that I do not believe the magistrate had overlooked it. Instead, the magistrate has imposed what, in all the circumstances, including the plea of guilty, was an appropriate sentence. This was a very severe penalty for this particular course of offending but, given the clear intention to take and drive the vehicle, the fact that it was driven for some time, and the damage to it, I do not think that the penalty is manifestly excessive.
Mr Kernahan next submitted that the magistrate ought to have suspended the penalty for driving whilst disqualified, since the appellant's driving was foolish, but not contumacious. He again stressed that the appellant's drunken state plainly prevented him from acting in any contumacious way. I do not think that I should give any weight to this submission. It is clear that the appellant would have known that he should not drive. Even allowing for his drunken state, I do not believe this was not a contumacious offence. Whilst I do not advance it as a reason, I note, in passing, that this penalty is, in any event, to be served concurrently with the other periods of imprisonment.
Finally, Mr Kernahan submitted that the sentence of three months imprisonment for stealing the darts was manifestly excessive. This was an ordinary, common or garden offence of shoplifting. The value of the goods was quite low and the goods were immediately recovered. It was an offence which called for what might be said to be the ordinary penalty for the offence of shoplifting. I believe that, in all the circumstances, a period of one month's imprisonment would have been quite sufficient for this offence. In all the circumstances, the penalty is manifestly excessive and I would reduce that sentence to a period of one month.
I do not think that the magistrate erred in revoking the suspended sentence. The appellant has had, as I have said, several suspended sentences in the past and has not reformed his conduct. The appellant committed these offences when a further ten months remained to be served for the bond. The offending was serious. For these reasons, and for the reasons given earlier, I would not interfere with this part of the magistrate's decision.
In the result, I have reduced the sentence by a period of four months. This results in a sentence for the offending on 7 and 13 May 1998 totalling 11 months. It is therefore necessary to fix a new non-parole period.
This is the first sentence that the appellant has had to serve. Any period of imprisonment would be a sharp reminder to him of his obligations to the community but also to himself. In all the circumstances, I believe it is appropriate to reduce the non-parole period to a period of 12 months.
The orders will therefore be:
Appeal allowed.
The orders of the magistrate will be varied as follows:

2.1The sentence for the offence of larceny committed on 7 May 1998 is
reduced from imprisonment for four months to imprisonment for two
months.

2.2The sentence for the offence of larceny committed on 13 May 1998 is
reduced from imprisonment for three months to imprisonment for one
month.

2.3The head sentence is reduced to imprisonment for 25 months to
commence on 11 January 1999.

2.4There be a new non-parole period of 12 months to commence
11 January 1999.

[1999] SASC 78

2 March 1999