Anthony Brian Jackson v SA Police No. SCGRG 96/644 Judgment No. 5566 Number of Pages 5 Criminal Law and Procedure

[1996] SASC 5566

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law and procedure - sentence - non-parole period - The appellant appealed against the length of a non-parole period of 24 months imposed with respect to a head sentence of 30 months imprisonment on six admitted charges of receiving - he contended that since the truth in sentencing legislation, the starting point for the fixation of the non-parole period should be 50% of the head sentence - held that neither before nor after the Truth in Sentencing legislation was it proper to regard any proportion of the head sentence as representing the norm - the fixation of the non-parole period was entirely dependent upon the circumstances peculiar to the individual case and there is no norm - however, in the particular circumstances the non-parole period was manifestly excessive and should be reduced to 18 months. Martin v R Court of Criminal Appeal, 20 June 1995, judgment No 5157 (unreported, available on SCALE); R v Creed (1985) 37 SASR 566, considered.

HRNG ADELAIDE, 17 April 1996 #DATE 17:4:1996 #ADD 20:5:1996

Counsel for appellant:     Mr A Richards

Solicitors for appellant:    J Adam Richards

Counsel for respondent:     Mr M Hinton

Solicitors for respondent: Crown Solicitor (SA)c

ORDER
Allow the appeal for the limited purpose of reducing the non-parole period to 18 months. In all other respects the sentence appealed from is confirmed.

JUDGE1 PERRY J The appellant appeals against the sentence imposed upon him in the Magistrates court sitting at Port Adelaide on six admitted charges of receiving. All of the charges relate to computers and associated equipment stolen over a period of time in early 1995 from various school premises, and which, after their theft, the appellant unlawfully received into his possession. The counts related to the period between 24 January 1995 and 17 February 1995, the property involved amounting to a total in excess of $50,000.

2. The appellant pleaded guilty to a similar offence in early 1995. Apparently that was one count only, upon the basis of which, when sentenced, the appellant was released on a good behaviour bond. It appears that he then co-operated with the police and identified certain persons who had been responsible for the theft of the items in question, only to find that in consequence of that he was then charged with the six counts of receiving now in question.

3. The sentence imposed was a sentence of imprisonment of 30 months with a non-parole period of 24 months. The sentence was suspended upon the appellant entering into a bond in the sum of $100 to be of good behaviour for a period of three years. The appellant was further directed to perform 320 hours of community service within one year.

4. In his notice of appeal the respondent complains only of the length of the non-parole period. Specifically the appellant complains that the non-parole period was manifestly excessive in all the circumstances, and further that the learned sentencing Magistrate erred in failing to take into account, or any adequate account, when setting the non-parole period, the defendant's rehabilitative prospects.

5. The appellant is 28 years of age and lives alone. He is the director of a computing company which operates from his home. It appears that he had a system whereby he was regularly contacted by the three offenders responsible for the thefts, whom he would then meet either at his own house or near one of their houses, upon which occasions he would purchase, for cash, the computer equipment which they had stolen.

6. When police raided the appellant's home in February 1995 they found a considerable quantity of stolen goods on which there were markings which identified them as having come from a primary school. The other offences then came to light in the manner to which I have referred.

7. During his remarks on penalty the learned sentencing Magistrate said that at the hearing before him the informant indicated that he had no opposition to suspension of any sentence of imprisonment which the court might otherwise be disposed to impose.

8. The learned sentencing Magistrate then went on to identify a number of mitigating factors which he considered supported the exercise of the discretion to suspend. They were that the appellant came before the court with no previous convictions, and that he had already been sentenced with respect to the other related offence and had virtually completed the bond upon which he was released with respect to that other offence. He further observed that the appellant was a person who had good prospects of rehabilitation, in that he had, amongst other things, embarked on a computer course and was attempting to obtain formal qualifications in that area. He further took into account that the appellant had co-operated fully with the police and it was in consequence of this that those persons who had been involved in the actual breaking into the premises and the theft of the goods in question were apprehended.

9. The learned sentencing Magistrate took into account other matters personal to the appellant, including his unfortunate adolescence, and the fact that he had voluntarily contributed to the community by assisting with a program known as the "Big Brother" program.

10. The learned sentencing Magistrate said: "I stress that in exercising my discretion to suspend the period of imprisonment which I propose to do, I make it very clear that this is an exceptional circumstance and in the normal course an immediate term of imprisonment would follow."

11. With specific reference to the duration of the non-parole period the learned sentencing Magistrate observed: "The length of the non-parole period has been set not only as a deterrent to the defendant but more importantly as a matter of general deterrence."

12. There is no doubt that theft of computer equipment from schools must be regarded as a serious crime. In ordinary circumstances the suspension of a term of imprisonment which might otherwise be thought to be warranted with respect to such a crime, would not be countenanced. There is however, no appeal in this matter against the exercise of the discretion to suspend the sentence, and it is therefore unnecessary for me to say anything more about that aspect of the matter.

13. Mr Richards for the appellant put a number of arguments as to the non-parole period. In particular, he put forward the submission that since what might for convenience be described as the truth in sentencing legislation, one should start with the proposition that a non-parole period should represent in the order of 50% of the head sentence, but that the proportion could be varied either way, depending on the individual circumstances of the case.

14. There are two problems with that contention.

15. In the first place the truth in sentencing legislation affects the head sentence primarily, and the non-parole period only consequentially. It has generally been accepted by the courts that since the truth in sentencing legislation has come into effect, it is proper to set a head sentence of a somewhat lower order than might previously have been considered appropriate. Arithmetically, one might justify a reduction of one-third. But this court has been at pains on a number of occasions to indicate that there is no rigid deduction to be made. The correct approach is simply to bear in mind when fixing a sentence that remissions are no longer available. In that respect I refer to the unreported judgment of the Court of Criminal Appeal in Martin v R, 20 June 1995, judgment No S5157, and in particular the observations of Doyle CJ at page 4.

16. So far as the non-parole period is concerned, if as a result of the truth in sentencing legislation the head sentence is reduced, clearly the non-parole period which might have applied with respect to the longer head sentence which would have been imposed before the truth in sentencing legislation, will necessarily be shorter.

17. Again, however, it would be erroneous to approach the matter on the footing that a non-parole period fixed with respect to a reduced sentence imposed after the truth in sentencing legislation has come into affect will bear the same relationship in terms of proportion to the head sentence which might have been thought appropriate before that legislation came into force.

18. On the contrary, the correct approach is first of all to fix the head sentence, bearing in mind that remissions are no longer available. The fixation of the non-parole period should then be made without any pre-conceived views as to its relationship to the head sentence. Of course, the Court should also bear in mind that the non-parole period is likewise no longer subject to remissions. But there is no starting point in the fixation of a non-parole period, let alone a starting point which represents some proportion of the head sentence; see the observations of King CJ, with whom Cox and Olsson JJ concurred, in R v Creed (1985) 37 SASR 566 (at 569):
    "Counsel for the respondent mentioned, in the course of his
    submissions, what I gathered from him was regarded something
    of a norm, namely, that the non-parole period should
    represent two-thirds, in an ordinary case, of the head
    sentence. The members of this bench know of no such
    practice and speaking for myself, and I think the other two
    members of this Court, I would wish to say that the Court
    does not regard a non-parole period of two thirds, nor
    indeed any other proportion, of the head sentence as being
    the norm. Every case has to be considered upon its own
    facts and a non-parole period has to be fixed in every case
    which reflects the considerations which are peculiar to that
    case. In some cases the punitive, deterrent and
    preventative aspects will play an important part, in others
    the prospects of rehabilitation by means of parole will play
    a much greater part. Nothing in the nature of a norm can be
    acceptable."

19. In my opinion, the comment by the learned sentencing Magistrate that the non-parole period imposed by him was primarily set as a matter of general deterrence is, in the circumstances of this particular case, indicative of error. It seems to me that in fixing a non-parole period, the question of general deterrence has less part to play than in the fixation of the head sentence. It is consistent with authority that in fixing the non-parole period the court is able to place greater weight on the personal circumstances of the defendant, and allow more scope for those circumstances than in the case of the fixation of the head sentence, where often the question of general deterrence will be a weighty factor to be considered.

20. In the case of the non-parole period, while the question of general deterrence is still a relevant factor, the court is obliged to address the prospects of rehabilitation and the question whether or not it seems likely that the defendant will benefit from a reasonable period under the supervision of a parole officer. If the prospects of the defendant benefiting from a substantial period on parole are, having regard to his or her record or other circumstances, slight, no doubt the non-parole period will then be set at a length which will represent a substantial proportion of the head sentence. In cases, however, where there are indications that the defendant would benefit from parole, the fixation of the non-parole period should proceed with that in mind.

21. Here, despite the seriousness of the offending, it appears to me that there were indications that the appellant would benefit from a reasonably substantial period on parole, rather more than the period of six months which would result from the sentence pronounced by the learned sentencing Magistrate.

22. I have reached the view that the non-parole period in this case was not only set at a somewhat longer period than was warranted, but that it was excessive to a degree justifying the intervention of this Court.

23. In all the circumstances, I consider that an appropriate non-parole period to be imposed is a period of 18 months.

24. I would therefore allow the appeal for the limited purpose of reducing the non-parole period to 18 months. In all other respects the sentence appealed from is confirmed.

25. (AFTER HEARING COUNSEL ON THE QUESTION OF COSTS)

26. I order that the respondent pay the appellant's costs in the sum of $150.