Anthony Steven Michael v SA Police No. SCGRG 96/1494 Judgment No. 5760 Number of Pages 6 Criminal Law

[1996] SASC 5760

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law - sentencing - suspension of sentence - the appellant, a 30 year old man, appealed against the failure of the sentencing Magistrate to suspend a term of five months imprisonment imposed on admitted charges of receiving goods of the value of almost $3,500 over a period of about six months - observations as to the relevance of the efforts made by the defendant to rehabilitate himself over a period of eighteen months intervening between the commission of the offences and sentence. Criminal Law Consolidation Act 1935s196, referred to. Vartzokas v Zanker (1989) 51 SASR 277; Duncan v R
(1983) 47 ALR 746, considered.

HRNG ADELAIDE, 15 August 1966 #DATE 15:8:1996 #ADD 17:9:1996

Counsel for appellant:     Mr S C Ey

Solicitors for appellant:    Mangan Ey &; Associates

Counsel for respondent:     Ms P Barnett

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 PERRY J The appellant appeals against the sentence imposed upon him following his plea of guilty in the Magistrates Court sitting at Holden Hill to an information which alleged four counts of receiving, contrary to s196 of the Criminal Law Consolidation Act 1935.

2. The receiving related to property which, in the main, was comprised of compact discs and other electrical goods, totalling over $3,500 in value. The goods were received on various occasions between January and September 1994.

3. The appellant was represented by Mr Ey of counsel, who also prosecuted the appeal.

4. After recording a conviction, the learned sentencing magistrate imposed one penalty under s18A of the Criminal Law Sentencing Act 1988, namely, five months imprisonment. The learned sentencing magistrate declined to yield to a submission put on the appellant's behalf that the term of imprisonment be suspended.

5. In his notice of appeal, the appellant complains that the learned sentencing magistrate erred in not suspending the term of imprisonment "because of the delay by the prosecution in proceeding with the charges and his current employment situation, his plea of guilty, and co-operation with the police".

6. It is further alleged in the notice of appeal that the learned sentencing magistrate erred in not expressing the discount for the appellant's plea of guilty contrary to remarks which fell from the Court of Criminal Appeal in the case of R v Harris and Simmons (1992) 59 SASR 300, but that aspect of the matter was not pursued on the hearing of the appeal.

7. The information was not filed until March 1995, and, following a number of remands, was not dealt with until July of this year. It seems to me that if there was any undue delay in prosecuting the matter - and I make no comment one way or the other as to that, as there were certain investigations which needed to be completed - Ms Barnett, who appeared for the respondent, is right in suggesting that this operated to the advantage of the appellant.

8. That is so, as it enabled the appellant to put before the learned sentencing magistrate the submission that he had not offended over a period of about 18 months which intervened, and that this should go into the scales in his favour in the exercise of the discretion to suspend.

9. The circumstances of the offending in question are described in an affidavit of the police prosecutor.

10. It appears that in September 1994, the police had cause to search the appellant's premises at Para Hills, and, as a result, a number of goods which had been stolen from a previous house break and larceny were recovered.

11. To his credit, the appellant then assisted police with further investigations. In particular, he admitted having dealings with another person from about February 1994. Between then and September 1994, the other person brought to the appellant the goods which are the subject of the offences now in question. He admitted having given drugs to the other man in exchange for some of the goods.

12. It is clear from the account given by the appellant that he was well aware that the other man's possession of the goods was likely to have been unlawful. He regretted his offending and appeared to be contrite. Most, if not all, of the goods have been recovered.

13. The appellant, who was at the time of the offending 30 years of age, has a long list of previous convictions. They commence with convictions recorded in the Adelaide Children's Court, as it then was, in 1981, when the appellant came before the court on larceny and breaking and entering counts.

14. It is true to say, as Mr Ey for the appellant has submitted, that except for a charge of receiving upon which the appellant was convicted in 1985, the remainder of the offences, almost without exception, accumulated by the appellant were traffic or drug offences. With the exception which I have mentioned, there were no other offences for dishonesty.

15. The fact remains, however, that the offences now in question were committed over a period of time of some months and involved goods of not insubstantial value.

16. The appellant has formed a relationship with a young woman, who has also sworn an affidavit which is before me, in which she confirms that they plan to have a family. It appears also that the appellant obtained employment soon after he was spoken to by the police, towards the end of 1994, which he terminated only recently when he realised that if, having regard to the appeal, a custodial term was imposed, he would lose that job.

17. It is to his credit, however, that he was immediately able to take up another job assisting a carrier, being a position not threatened by any prison term. His present employer has given a reference which, by consent, was put before me on the hearing of the appeal, and was also present in court.

18. It was put to the learned sentencing magistrate that the sentence should be suspended having regard particularly to the appellant's contrition, his co-operation with the police, full and frank admissions, the fact that he has kept out of trouble since the last of the offences in September 1994, the fact that he has a stable relationship, that the property was recovered, and that he had obtained employment.

19. In his remarks on sentence, the learned sentencing magistrate described the offences as both serious, as they undoubtedly were, and deliberate and calculated. He said:
    "I take into account that you were co-operative with the
    police and that there has been no offending since the
    commission of these offences in 1994. So I will give you
    some credit or discount for those factors. But, as I have
    indicated, they are serious offences and the appropriate
    penalty is imprisonment. I have been urged to suspend the
    term of imprisonment. I have considered all the
    circumstances and the matters put to me by your counsel and
    I believe this is not a sentencing option for me in this
    case. I do not think it is realistic for me to consider
    suspending the term of imprisonment given the seriousness of
    the offending and the fact that they involved a conscious,
    deliberate and voluntary decision on your part, with full
    knowledge of the serious consequences, because you served a
    term of imprisonment previously for a similar offence."

20. Mr Ey submitted that the learned sentencing magistrate failed to take properly into account the appellant's efforts at rehabilitation. He repeated the substance of the submissions which he had put in the court below. He drew attention to the sentencing remarks and to the fact that the learned sentencing magistrate did not expressly refer to the appellant's rehabilitation.

21. I am reluctant to assume from a failure by a busy sentencing magistrate in his extempore remarks on sentencing to set out all relevant factors that he has overlooked such an obvious matter. The submissions which have been put in mitigation were still fresh in his mind. He clearly had regard to all of the circumstances of the matter in exercising his discretion against suspending the term of imprisonment.

22. What the appeal really boils down to is a submission that because of the failure to suspend, given the surrounding circumstances, including the personal circumstances of the appellant, the exercise of the discretion must be taken to have miscarried.

23. I must say that, in my opinion, the case is a borderline one, and there is much force in the submission which has been put by Ms Barnett that the failure to suspend is not such an obvious error as to justify disturbing the sentence. Indeed, it might be said that there really is no error overtly apparent from what the magistrate said and what he did.

24. A number of authorities were referred to by Mr Ey in the course of his submissions. It is sufficient, for present purposes, if I refer to Vartzokas v Zanker (1989) 51 SASR 277. In the course of his judgment in that case, which was a decision of the Court of Criminal Appeal, King CJ, as he then was, remarked (279):
    "Rehabilitation as an object of sentencing is aimed at the
    renunciation by the offender of his wrongdoing and his
    establishment or re-establishment as an honourable law
    abiding citizen. It is not confined to those who fall into
    wrongdoing by reason of physical or mental infirmity or a
    disadvantaged background. It applies equally to those who,
    while not suffering such disadvantages, nevertheless lapse
    into wrongdoing. The object of the courts is to fashion
    sentencing measures designed to reclaim such individuals
    wherever such measures are consistent with the primary
    object of the criminal law which is the protection of the
    community."

25. As to the weight to be given to attempts at rehabilitation intervening between the offending conduct and the date of sentencing, regard should be had to the decision of the Court of Appeal of Western Australia, with which I respectfully agree, in Duncan v R (1983) 47 ALR 746 at 749.

26. While the seriousness of the offending in this case cannot be overlooked, it does seem to me that the conduct and efforts made by the appellant to rehabilitate himself, coupled with the initial co-operation which he gave when apprehended by the police, should, in the circumstances of this particular case, have given rise to the exercise of the discretion to suspend in his favour.

27. I emphasise that, in some senses, the case is a borderline one. To recognise that would ordinarily perhaps be an indication that it is not appropriate for this court to interfere. But I think that when the various factors in favour of suspension are given proper weight, I am able to reach the conclusion that the failure to suspend this particular sentence is indicative of appealable error.

28. In substituting, as I propose to do, a suspended order of imprisonment, the question arises as to whether the term should be extended. There would be some sense in doing so, given that the learned sentencing Magistrate clearly imposed a term which was shorter than he might otherwise have been disposed to give, by reason of the fact that the sentence took effect forthwith.

29. However, Ms Barnett for the respondent quite properly pointed out that there was no cross-appeal, and in any event, she did not wish to put a suggestion that the length of the sentence should be extended. Accordingly, I do not further address that aspect of the matter, except to say that the sentence of five months imprisonment should not be taken to be any sort of precedent for offending of this kind, which ordinarily would deserve a longer term.

30. The appeal will be allowed. The sentence of imprisonment is confirmed, but the order under appeal is varied by substituting an order that the sentence be suspended upon the entry by the appellant into a bond in his own recognisance in the sum of $1,000 for a period of two years, and during that time to be under the supervision of a probation officer, and to obey all reasonable directions of the probation officer, including any directions with respect to treatment for any addiction to drugs.