Andrew Wayne Wallace v SA Police No. SCGRG 93/2262 Judgment No. 4385 Number of Pages 5 Criminal Law Sentencing

[1994] SASC 4385

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Criminal law - sentencing - appeal against sentence - guilty plea to three counts of unlawful possession of goods - two breaches of a bond of good behainiour - appellant had little time to consider the consequences of being in possession of these goods and taking appropriate action to distance himself from it - appeal allowed - sentence reduced to 18 months' imprisonment cumulative upon the sentence of imprisonment for the earlier of fences. Criminal Law (Sentencing) Act 1988s.18a. R v Kain (1985) 38 SASR 309 and R v Rang (unreported, 12/11/93, Mullighan J), applied.

HRNG ADELAIDE, 18 January 1994 #DATE 18:1:1994
Counsel for appellant:     Mr G Mead
Solicitors for appellant:    Legal Services Commission of
   South Australia
Counsel for respondent:     Miss De Palma
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 DEBELLE J On 24 August 1993 in the Magistrates Court at Mount Gambier the appellant pleaded guilty to three counts of unlawful possession of goods and one count of hindering the police, the offences occurring on 21 June 1993. He also acknowledged two breaches of a bond. 2. Pursuant to s.18a of the Criminal Law (Sentencing) Act 1988 the magistrate hearing the matter imposed one sentence for two counts of unlawful possession and sentenced the appellant to a period of two years' imprisonment. He convicted the appellant without penalty in respect of the remaining count of unlawful possession of goods and in respect of the count of hindering the police. 3. The bond had been ordered on 25 February 1993 when the appellant had been sentenced to a period of 18 months' imprisonment for attempted larceny. That sentence was suspended upon the appellant entering into a bond to be of good behaviour for a term of three years. On 25 February 1993 the appellant was also convicted on a count of breaking and entering a building with intent to commit a felony, and for that offence he had been sentenced to a period of four months' imprisonment which was suspended on the same terms as the sentence for the offence of attempted larceny. The appellant was thus liable for a head sentence of 22 months in respect of those two offences. On 24 August the learned magistrate revoked the suspension of those sentences. The learned magistrate ordered that the sentence in respect of the convictions for unlawful possession should be served cumulatively upon the sentences ordered on 25 February. 4. In the result the appellant was ordered to serve a head sentence of 46 months being the period of 22 months' imprisonment ordered on 25 February 1993 and the period of 24 months' imprisonment ordered on 24 August. The learned magistrate fixed a non-parole period of 36 months. 5. The appellant appeals from the sentence of 24 months' imprisonment for the offences of unlawful possession on the ground that it was manifestly excessive. Although it is a ground of appeal that the learned magistrate had erred in the exercise of his discretion by holding that he was bound by the provisions of s.58 of the Criminal Law (Sentencing) Act to revoke the sentences, that ground of appeal is not now pursued. There is, therefore, no appeal from the orders revoking the suspended sentence. 6. The appellant was one of several regular occupants of a house at Mount Gambier which had been searched by police after some offences of breaking and entering premises had been committed in the area. The magistrate was asked to deal with the appellant on the footing that he came into possession of the goods by failing to distance himself from the circumstances of the offending. 7. There were a number of goods involved and some were of reasonably substantial value. The goods comprised a compact disc player, a cassette player, a vacuum cleaner, a torch, a quantity of hairdressing equipment and a video camera. The value of the hairdressing equipment and the video camera were said to be $3,200. No value has been ascribed to the other items. Those goods were the subject of the two counts of unlawful possession for which the appellant was sentenced. The other goods the subject of the third count of which he was convicted without penalty were a screen door, a flyscreen and two knives. 8. Mr Mead, who appeared for the appellant, submitted that the criminality of the actions of the appellant was relatively minor as he had been in possession of the goods for a short time, and because there were other occupants in the house in which the goods were found. In making that submission he was referring to the basis upon which the plea was made and to which the police prosecutor assented when the appellant was sentenced, namely, that the appellant did not have exclusive possession of the goods; that he was one of a number of regular occupants of the house; that there was no evidence that the appellant had stolen any of the goods or that he had received them; and, although he knew the goods had been delivered to the house, it had been through no action of his that the goods came to be in the house. 9. Further, it was said that the time which had elapsed between the unlawful appropriation of these goods and the arrival of the police had been relatively short, so the appellant had been caught up, as it were, in a flow of events that had not given him the opportunity to consider properly the consequences of being in a position to exercise possession of those goods. Mr Mead submits, therefore, that for that reason alone the penalty was manifestly excessive. 10. Mr Mead also pointed to the fact that, although all of the goods were discovered in the possession of the appellant on the one occasion, there are two separate counts. He contends that the matters ought to have been considered as being concurrent offences to the extent that there had been such a short lapse of time between the unlawful appropriation of these goods and them being found in the possession of the appellant all on the one occasion. 11. On one view it is perhaps a little curious that there are two separate counts, notwithstanding that the goods were all found on the same day. That is perhaps explained by the fact that there may have been two occasions when the goods were unlawfully appropriated. Nevertheless, there is a degree of force in what Mr Mead points to, namely, the contemporaneity as far as this course of offending is concerned. I interpolate that the position might have been quite different, if there had been two separate visits by the police to those premises and on the occasion of each of those visits a person had been found unlawfully in possession of separate parcels of goods. 12. Given the basis upon which the learned magistrate was asked to deal with the matter, there is some force in the submission that the sentences imposed were manifestly excessive. Even though the appellant was on a bond to be of good behaviour and had entered into that bond less than four months earlier, he had had very little time in which to consider the consequences of being in possession of these goods and taking appropriate action to distance himself from it. He has, however, pleaded guilty and there can be no doubt that he was in unlawful possession of those goods. 13. The appellant has a rather poor record. He has been convicted on a number of occasions in Victoria for theft and for housebreaking. The offences in Victoria also include receiving stolen goods. He has also been convicted of two offences for larceny in Mount Gambier as well as for the attempted larceny and breaking into a building with intent to commit larceny for which he was sentenced on 25 February 1993. 14. The appellant was, of course, as the magistrate reminded himself, not to be punished for his prior record. However, by dint of his prior record, he has, as it were, forfeited any claim to leniency. Regard must be had also to the fact that the offence was a serious one. There was a reasonable quantity of stolen goods and they were of a reasonably substantial value. A substantial penalty was, therefore, called for, particularly having regard to the appellant's prior record. However, although the offence was serious, it did not, I think, merit the penalty imposed. 15. In all the circumstances I think that a period of 18 months' imprisonment was appropriate. 16. In the course of his submissions Mr Mead submitted that the magistrate had imposed the maximum penalty for this offence, namely, a period of imprisonment for two years. It must be remembered, however, that the learned magistrate was exercising his powers pursuant to s.18a of the Criminal Law(Sentencing) Act in respect of two counts. The maximum penalty was a sentence of four years, not two years as Mr Mead had submitted: Rang v R (unreported, 12/11/93, Mullighan J). Mr Mead also submitted, I think in the alternative, that the magistrate had failed to have regard to the totality of the sentence ordered. Generally speaking, when a person commits offences while under a recognisance to be of good behaviour as a term on which a previous sentence of imprisonment has been suspended, any term of imprisonment for those offences will be cumulative upon the sentence of imprisonment for the earlier offences: see The Queen v Kain (1985) 38 SASR 309. Were it otherwise, the force of the bond and the suspended sentence would be greatly diminished. Those serving a bond might be minded to offend again in the knowledge or expectation that they would not suffer further significant punishment. The proper course is to consider the appropriate sentence of imprisonment for each offence. The learned magistrate, therefore, properly approached the matter by properly determining what sentence he should order in respect of the two counts of unlawful possession of goods. 17. Mr Mead submitted that the observations in The Queen v Kain should be qualified by what has fallen from the Full Court in The Queen v Margetson
(1987) 139 LSJS 325 and in The Queen v Rossi (1988) 142 LSJS 451. Given the conclusion that I have reached that the penalty was manifestly excessive, it is perhaps unnecessary to deal with that submission. But, even if the principles in Rossi and Margetson were to apply - and I am, for the present purposes, prepared to assume that they do - I do not think that the totality of the sentences which will be the effect of my order, warrants any further reduction in the sentence to be served by the appellant. 18. For these reasons, I would allow the appeal. There is no appeal from the order revoking the suspended sentence. The new head sentence is therefore reduced to a term of 40 months. As the head sentence has been reduced, it is appropriate to fix a new non-parole period. I fix a non-parole period of 30 months. 19. I should add that this appeal was lodged out of time and the appellant applies for an extension of time within which to appeal. The application is not opposed. I will further order that and, indeed, it will be the first of my orders that the time within which the appeal to be instituted and served is extended until the date upon which it was served upon the Crown Solicitor. 20. There will, therefore, be orders as follows:
    1. The time within which to institute this appeal is
    extended until the date of service upon the Crown Solicitor.
    2. Appeal allowed.
    3. The orders of the learned magistrate made on 24 August
    1993 herein are varied:
    (a) By substituting for the sentence ordered for the
    offences of unlawful possession, a sentence of 18 month's
    imprisonment.
    (b) By substituting for the head sentence ordered a new head
    sentence of 40 months.
    (c) By substituting for the non-parole period ordered a new
    non-parole period of 30 months. 21. The learned magistrate ordered that the sentences shall be backdated to 21 June 1993 when the appellant was first taken into custody. There is no cause for interfering with that order and the sentences I have ordered will likewise be backdated to that date.