ALEXIADIS v Police - [2010] SASC 182

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ALEXIADIS v POLICE
[2010] SASC 182
Judgment of The Honourable Justice Vanstone
30 June 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OTHERS
Appeal against sentence - argument that sentence of 12 months imprisonment for unlawful possession was manifestly excessive and that should have been suspended - offence committed in breach of a suspended sentence - whether magistrate gave sufficient weight to appellant's role in caring for dependants and to the time elapsed since the offence and the rehabilitation of the appellant - whether appropriate for magistrate to have sentenced the appellant when the breach of bond was yet to be dealt with by the District Court.
Held: appeal dismissed - sentence not outside the discretion of the sentencing magistrate.
Criminal Law (Sentencing) Act 1988 s 57(4a), referred to.
R v Carpentieri (2001) 81 SASR 164, applied.

ALEXIADIS v POLICE
[2010] SASC 182
Magistrates Appeal

VANSTONE J: On 6 May 2010 the appellant was sentenced in the Magistrates Court for an offence of unlawful possession of an amount of cash approximating $56,000. The sentence imposed was one of 12 months imprisonment with a non-parole period of nine months. He appeals against the sentence arguing that it was manifestly excessive and, as well, should have been suspended.
The offence was committed on 30 April 2005. Just six weeks before that date the appellant was dealt with in the District Court for taking part in the production of cannabis. A suspended sentence of three years imprisonment with a non-parole period of 18 months was imposed. That offence was committed in June 2002.
When the appellant was arrested for the current offence it was found that there was a warrant outstanding for his arrest in respect of an offence of cultivating cannabis, which had been committed in New South Wales in April 2004. Consequently, the appellant was extradited to that state, before being dealt with for the current offence. He spent close to nine months in prison there for that offence. Upon his release in January 2006 he remained on parole for about ten months.
Within about five months of his release the charge of unlawful possession was laid. The appellant first appeared in the Magistrates Court for that charge in December 2006. For various reasons which were not the fault of the appellant, the trial of the matter was not commenced until August 2009. The trial continued over a number of days. The appellant gave evidence in his defence and called evidence in support of his contention that his possession of the money was not unlawful. Ultimately the magistrate did not accept that evidence. On 1 December 2009 he was found guilty.
Evidence was called in relation to the matter of sentence. In particular, the evidence concerned the appellant’s obligations in caring for his two teenage children and the difficulty of providing care for them, were he to go to gaol.
In sentencing him, the magistrate found that although he had care of the children as a sole parent, the circumstances were not so exceptional as to give rise to hardship. The magistrate found that the offence was a serious one of its type. She referred to the question of delay between commission of the offence and finalisation of it and the fact that the appellant apparently had not re-offended in that period. Notwithstanding the matters put to her, the magistrate declined to suspend the sentence which she considered it was necessary to impose.
In submissions before me, Mr S C Ey, for the appellant, pointed to the overall severity of the sentence, including the non-parole period, and the lack of weight apparently given to the circumstances of the appellant’s dependants and to his claimed rehabilitation since commission of the offence. The only explicit error to which Mr Ey pointed related to the magistrate’s remarks in relation to the suggested rehabilitation since the offence. In that regard the magistrate said the following:
Rehabilitation is a matter I must take into account. I note, however, that you have not pleaded guilty to the charge and as charges were not laid until 28 June 2006, there has been substantial delay in finalising the matter. This time has allowed you the opportunity to reform. However, given your criminal history and the fact that this offence was committed only a few weeks after being placed on a District Court suspended bond, and from evidence given in this trial, I am aware that you have spent part of that time in prison interstate, I give little weight to this submission.
Mr Ey suggested that it appeared from the remarks that the magistrate had depreciated the weight of the period of five years without conviction by reference to the fact that the appellant had spent part of that time in prison. Mr Ey put that the magistrate was not told precisely how much time had been spent in prison. In any event, he said, that time would have assisted the rehabilitation process and should not have been categorised as a matter detracting to the submission.
It is true that the magistrate used the word “however” as a prelude to referring to the time spent in prison, impliedly suggesting that the opportunity to reform was more limited than it might otherwise have been. But when regard is had to the whole of the paragraph and to the various considerations mentioned, I do not think that the reference is indicative of error. The failure to plead guilty (despite being guilty), the appellant’s criminal history and that the instant offence had been committed only six weeks after being dealt with in the District Court were all countervailing factors, plainly relevant to the issue of the weight to be given to a period without offending. I do not think that any error of approach is indicated.
Mr Ey also pointed to the fact that the head sentence imposed was one half of the two year imprisonment maximum penalty for unlawful possession. Then, he referred to the fact that the non-parole period constituted a high proportion of the head sentence. In those circumstances, he put that the sentence did not reflect either the commencement of the rehabilitation process – including the appellant’s regular employment and the responsibility he had taken for his children in the absence of their mother – or the fact that the children were dependent upon his care and support.
It is true that all these matters were relevant to the question of sentence. However, it cannot be said that the magistrate overlooked them, as she specifically referred to each of them.
It is to be remembered that the magistrate had ample opportunity to consider the appellant’s criminal history, his attitude to the instant offence and the evidence he gave as to the predicament in which his children would find themselves in his absence. The magistrate gave particular attention to the weight to be given to the hardship that might accrue to the dependants of the defendant. It is well established that hardship to a defendant’s dependants will only affect the overall sentence in cases that are out of the ordinary: R v Carpentieri (2001) 81 SASR 164. I agree with the magistrate’s conclusion on this issue.
I must say that the sequence of events constituted by the offence ultimately dealt with in the District Court, then the similar offence in New South Wales, followed by the imposition of the suspended sentence and then the instant offence, necessarily made it difficult for the magistrate to show more leniency than she did. In point of principle it would always be extremely difficult to justify suspension of a new sentence where the offence was committed in breach of a bond associated with a suspended sentence; even more so when committed within a matter of weeks after entering into the bond to be of good behaviour. It is true that the period of several years between the commission of the instant offence and the appellant’s sentence could count in his favour. But also relevant there was the fact that the appellant had chosen to defend the unlawful possession charge, including with his own evidence. Of course he was entitled to defend the matter, but having done so and having not persuaded the magistrate of the truth of his evidence, there was no evidence of contrition. Moreover the magistrate could question whether the process of rehabilitation had truly advanced.
Mr Ey further pointed to s 57(4a) Criminal Law (Sentencing) Act 1988 and the fact that the magistrate had not apparently considered the question of whether she should either sentence the probationer herself or remand him to the District Court to be dealt with for sentence and for breach of the bond. It is true that there is no mention of this matter in the sentencing remarks and that, apparently, the matter has not been referred to the District Court, either by the Magistrates Court or by the filing of estreatment papers in the District Court. However, in an affidavit by the police prosecutor who appeared before the magistrate during sentencing submissions, it is made plain that the prosecutor referred the magistrate to the relevant issue and that the magistrate expressed the view that it was appropriate that she determine the sentence, having heard all of the evidence. I do not consider that the magistrate can be criticised for the decision to impose sentence herself. She was best placed to determine the seriousness of the charge, having heard a number of days’ evidence. However, it is unsatisfactory that, again, the processing of the matter has been disrupted by the delay in invoking the District Court’s jurisdiction to deal with the breach of bond.
While one can feel that it is unfortunate that after a number of years in apparently gainful employment and after taking on responsibility for caring for his children, the appellant is now to be returned to prison, ultimately that course was set in the years 2002 to 2005 when the appellant committed the three serious offences I have mentioned. It is true, as Mr Ey has argued, that both the head sentence and the non-parole period are relatively severe, having regard to the maximum penalty available, but I cannot say that the sentence is in any respect outside the discretion of the sentencing magistrate.
The appeal must be dismissed.
The orders I make are:
1.     appeal dismissed;
2.     bail revoked;
3.     sentence to commence today.