ANDREASEN v Police

[2004] SASC 255

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

ANDREASEN v POLICE

Judgment of The Honourable Justice Gray

26 August 2004

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - LARCENY OR STEALING

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT AND BEING OR BEING FOUND WITH INTENT

Appeal against sentence - appellant pleaded guilty to the offences of non-aggravated serious criminal trespass in a non-residential building and larceny - sentenced by magistrate to one sentence of 3 years 6 months imprisonment with a non-parole period of 2 years 4 months - sentence appealed on grouds that sentenced imposed was manifestly excessive and that insufficient weight was given to the appellant's personal circumstances - sentence imposed by magistrate appropriate - no error of principle shown - appeal dismissed.

Criminal Law (Sentencing) Act 1988 (SA) s18A, referred to.
House v R (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321, considered.

ANDREASEN v POLICE
[2004] SASC 255

Magistrates Appeal

GRAY J

1. This is an appeal against a sentence of imprisonment imposed by a magistrate.

2. The appellant pleaded guilty to the offences of non-aggravated serious criminal trespass in a non-residential building and larceny.  The offences occurred in October 2002 and February 2003.  He pleaded guilty to further dishonesty offences occurring between November and December 2003.  These offences related to larceny in retail premises as well as offences of receiving stolen property. The appellant’s offending was brought about by his drug addiction. In all, property to the value of about $2,500 was taken.

3. The appellant has a history of dishonesty offending. In 1995 he received a suspended term of imprisonment with respect to the offences of receiving and unlawful possession and in 1997 he was imprisoned in respect of break and entry offending. The offending in February 2003 and November and December 2003 occurred whilst he was on bail for the October 2002 offending.

4. In May 2003 the appellant was accepted into the Drug Court Program. However, he failed to meet his attendance reporting obligations and his participation in that program has been terminated.

5. The appellant has been in custody since 2 December 2003 following his arrest.

   The Magistrate’s Decision

6. Pursuant to section 18A of the Criminal Law (Sentencing) Act 1998 (SA) the sentencing magistrate imposed the one sentence for all of the offending of imprisonment for three years and six months.  A non-parole period of two years and four months was fixed. He exercised his discretion not to suspend the sentence of imprisonment.  He remarked:

   In determining a sentence I have taken into account your pleas of guilty, your time spent in custody and your time on the Drug Court program. In determining a sentence in respect of the two offences of non-aggravated serious criminal trespass and the associated larceny offences, I am bound by the decisions of the Court of Criminal Appeal in the  R v Delphin as applied to offences in non-residential premises by the decision in the R v Smith. I take into account the fact that both premises were commercial and that at the time of entry it was highly unlikely anyone would be present in those premises. In taking those matters into account in my view a sentence of three years imprisonment for each of the two series of offences is appropriate.

   In relation to the charges of theft and unlawful possession x 2 and stating a false name and address to police on the separate complaint, I consider a period of six months imprisonment is appropriate.

   Taking into account the total sentence I will impose, one year of the second non-aggravated serious criminal trespass and larceny will be concurrent with the first sentence and three months of the six months imprisonment for the subsequent offending will be concurrent with that first sentence as well. As a starting point and imposing a global sentence, that gives a total sentence of 5 years 3 months which I will reduce to a period of 4 years taking into account your plea of guilty. I further reduce that by 6 months for your period on home detention and on remand in custody for the period in June last year.

   In my view after reviewing your involvement in the Drug Court program there is no proper basis for any further reduction or suspension of the sentence of imprisonment. Pursuant to section 18A of the Criminal Law Sentencing Act one global penalty of 3 years 6 months imprisonment with a non-parole period of 2 years 4 months will be imposed. That sentence is backdated to commence when you were taken into custody on 2^nd December 2003 and I will waive court costs and prosecution fee. 

7. Counsel for the appellant submitted that the sentence imposed was manifestly excessive. It was said that insufficient weight had been given to a number of factors including the absence of circumstances of aggravation, the lack of premeditation, problems arising from the appellant’s drug addiction, the fact the appellant suffered from an adjustment disorder with depressed mood and finally the appellant’s co-operation with the police, and his contrition and remorse.

8. Counsel for the Crown submitted that the sentence imposed was well within the sentencing discretion available to the magistrate and in the circumstances the appellant’s antecedents and the ongoing and continuing nature of the offending, that the sentence was entirely reasonable.

9. The approach taken by the magistrate in his remarks disclose an appropriate consideration of the circumstances of the appellant’s offending as well as those matters relevant to mitigation. The magistrate was entitled to act pursuant to section 18A of the Sentencing Act and to fix the one sentence. Although there may be debate about the correctness of certain aspects of the magistrate’s approach and the way in which he constructed the ultimate sentence, the question is whether the sentence imposed was an appropriate sentence.

10. The magistrate’s remarks disclose that he made a reduction of between 20 and 25% in respect of the pleas of guilty, contrition or remorse and that he made a further reduction of six months on account of home detention bail.

11. The sentence of three years and six months imprisonment, given the appellant’s criminal and personal antecedents and having regard to the extensive offending, was entirely reasonable.  The fixing of a non-parole period of two years and four months was well within the magistrate’s discretion.  No error of principle has been shown in the magistrate’s approach.  He has not failed to consider any relevant material. He has not had regard to irrelevant material.  No basis has been established to interfere with his discretion.[1]

    [1] House v R (1936) 55 CLR 499

12. This appeal should be dismissed.

    
    

  Dinsdale v The Queen (2000) 202 CLR 321