ALBANESE v POLICE No. SCGRG-99-1230 Judgment No. S508

[1999] SASC 508

MONDAY, 29 NOVEMBER 1999
ALBANESE v POLICE
[1999] SASC 508

Magistrates Appeal
1 PRIOR J      In this appeal against sentence, the appellant complains that a head sentence totalling two years, six months and 22 days, and a non-parole period of 15 months, are manifestly excessive. 
2 The magistrate making those orders is said to have fallen into error in refusing to find proper grounds to excuse a breach of bond and also in imposing a term of imprisonment pursuant to s 75 of the Correctional Services Act, 1982 in circumstances where there had been a breach of parole. The last mentioned ground of appeal was not pursued at the hearing of the appeal.
3 The appellant was charged on three complaints.  The first alleged that on 10 September 1998, he broke and entered into a shed in a city restaurant, stealing property from that shed valued at $1100.  Amongst the property taken were matters that were personal property of a person who had used the premises as an office.  The appellant pleaded guilty to the charge, and to one of failing to state his full name and address when reasonably suspected by a member of the Police Force of having committed the admitted offence of shed-breaking and larceny. 
4 Two other complaints were before the court.  The first of these alleged the commission of the two admitted offences constituting a failure to observe conditions of a bond imposed in June 1998, with respect to charges of possessing housebreaking implements and unlawful possession.  On that occasion, the appellant had been convicted and sentenced to six months imprisonment, suspended upon his entering into a bond to be of good behaviour for 12 months.   The appellant admitted this breach. 
5 He also admitted a breach of conditions of a bond imposed on 8 September 1998, when he admitted some 13 offences.  Three of those were being unlawfully on premises, three of damaging property, two of assaulting police, one of resisting police.  On that occasion a sentence of six months imprisonment was suspended, upon the appellant entering into a bond to be of good behaviour for 18 months.  The appellant admitted that the commission of the two 10 September 1998 offences constituted a breach of that bond. 
6 The magistrate was told of the circumstances surrounding the commission of the admitted September 1998 offences.  An aggravating feature was, plainly, the fact that these offences occurred within two days of an appearance in the Magistrates Court, when he gained the benefit of a suspended sentence. 
7 A list of the appellant's antecedents was given to the magistrate.  Sadly, that list discloses a very long criminal history, particularised over some 24 pages.  It included many previous property offences, such as larceny, false pretences, receiving, and unlawful possession.  Drug offences were also admitted.  So too, previous breaches of bond. 
8 The offending involved offences committed by the appellant as an adult from 1990.  The magistrate asked whether the 1998 offences constituted a breach of parole.   It seems this matter was also raised by the prosecutor.   However, the magistrate made inquiries, on his own account, to be told that a parole term being served at the time of the September 1998 offences had been previously cancelled on 8 July 1998, for an offence committed on 13 May 1998. 
9 On that approach, the magistrate was informed that the appellant was not liable to have parole cancelled for the September offences.  It seems the appellant was erroneously released from prison, after being sentenced in July 1998.   He was not returned to custody to serve his cancelled parole term until 16 October 1999, when the magistrate completed the hearing of the matters then before him. 
10 The appellant was represented by counsel before the magistrate.  Counsel made submissions in relation to penalty, after details with respect to the breach of parole were supplied and a pre-sentence report prepared.  The magistrate was given a psychiatric assessment of the appellant, prepared by Dr Raeside at the request of his counsel. 
11 For the two offences, the magistrate imposed a single sentence of 12 months imprisonment, ordering that that sentence be cumulative upon the sentences he imposed for the breach of bond offences.  As to those breaches, he imposed sentences of six months imprisonment to be served concurrently but at the expiration of the unexpired portion of parole of one year and 22 days.  This period was correctly calculated by reference to offences of unlawful possession, and possession of housebreaking implements, committed on 21 April 1997, for which he had been sentenced to six months imprisonment. 
12 As already noticed, the appellant's counsel abandoned the complaint in the notice of appeal about the order made pursuant to s 75 of the Correctional Services Act.
13 The grounds pursued were that the magistrate erred in refusing to find proper grounds to excuse the breach of the two bonds, and that the non-parole period fixed was too great a proportion to the head sentence.  Counsel submitted that good reason existed for suspending the sentence of 12 months imprisonment in relation to the shed-breaking offence.  This was not a ground of appeal in the notice of appeal, but argument proceeded on that ground as well, by consent. 
14 Counsel submitted that the appellant had previously received a suspended sentence of imprisonment and, at the time when the two good behaviour bonds breached by the shed-breaking offence were imposed, it was not known that the appellant was suffering from a number of diagnosable conditions, although the circumstances of one of the lots of offending - those committed on 24 November - were bizarre.  Given that the court had before it a diagnosis of Bipolar Affective Disorder and Attention Deficit Disorder in the report of Dr Raeside, the submission was that there were proper grounds to excuse the breach of the bonds, and that the magistrate should have done so. 
15 Dr Raeside referred to Attention Deficit Disorder in school years only, although he did say it was possible that that condition persisted to the present.  The doctor was of the opinion that the appellant was well aware of the wrongfulness of his actions on the occasion of the most recent offending, even if he then was in a disturbed state of mind because of the effect upon him of drugs. 
16 In his report, Dr Raeside spoke of Bipolar Affective Disorder as being manic depression.  This is not a condition unknown in persons appearing before courts for offences of this kind.  Yet, the argument before this Court was that this was the first occasion when the appellant, himself, had any insight into why he had been a persistent offender in the past, and called for some indulgence from the sentencing court. 
17 I do not incorporate into these remarks all of what is in Dr Raeside's report, under the headings "Diagnosis", "Mental Competence" and "Prognosis and Treatment".  I reject the suggestion that, by proceeding as he did, the magistrate ignored what was in Dr Raeside's report, and that, had he given proper effect to Dr Raeside's report, the sentencing discretion would have been exercised in a manner consistent with the submissions put on appeal.  I reject the submission that the magistrate ignored the report of Dr Raeside, or that he failed to have due regard to any of the material that was before him. 
18 The magistrate was charged with the serious obligation to consider an appropriate sentence, taking into account the appellant's personal circumstances, as well as the circumstances surrounding the particular offending. Plainly, the magistrate was not satisfied there were proper grounds upon which the appellant's failure to comply with the conditions of the bond should be excused. I cannot say the magistrate erred in refusing to find proper grounds, nor can I say that the magistrate plainly erred in failing to find good reason to suspend the 12 month sentence of imprisonment imposed for the 10 September offending. I do not think the material before the magistrate made out good reason for any suspension of sentence, or action pursuant to the Criminal Law (Sentencing) Act 1988, s 58(3).
19 As R v Buckman  makes plain, this Court does not lightly interfere with the ordinary consequence of a breach of recognisance.  There must be special circumstances justifying a reduction in the term of a suspended sentence. 
20 Given the fact that these breaching offences were serious, there were no proper grounds upon which the failure to comply with the bond should have been excused.   Indeed, to have interfered in the way urged upon this Court would have been to have a marked disproportion between the seriousness of the offences constituting the breaches and the sentence of imprisonment which was activated. 
21 The magistrate took a long look at all the material before him.  I cannot say that he erred in the exercise of any sentencing discretion.  The orders made with respect to two breaches of bond were appropriate, and well within the proper exercise of his sentencing discretion in this case.   There was no warrant for a finding of good reason to suspend the sentence imposed for the most recent offending. 
22 An aggravating feature the magistrate could not ignore was the fact that the offences on 10 September occurred just two days after the appellant received the benefit of a suspended sentence for 13 matters already referred to.
23 As for the non-parole period fixed of 15 months, against a head sentence of two years, six months and 22 days, I cannot agree that the non-parole period fixed is manifestly excessive for the reasons advanced in the course of the appeal. 
24 The appellant's extensive antecedents left the magistrate in no doubt that he had poor prospects for rehabilitation.  In those circumstances, the non-parole period cannot be regarded as excessive against the period of imprisonment resulting from the orders properly made by the magistrate.  The length of a non-parole period depends upon the circumstances of a particular case, including the circumstances of the offender.  It must reflect the punitive, deterrent and preventative purposes of punishment.  It cannot be said that by fixing the period as he did the magistrate erred. 
25 I therefore dismiss the appeal.

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