BAGNARA v Police - [2022] SASC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
BAGNARA v POLICE
[2022] SASC 62
Judgment of the Honourable Justice Kimber
27 June 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
This is an appeal against a sentence imposed in the Magistrates Court of South Australia for 12 counts of Dishonestly Taking Property (Theft) contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and one count of Attempted Dishonestly Taking Property (Attempted Theft) contrary to ss 134 and 270A of the CLCA.
The Learned Magistrate imposed a single sentence of nine months and 16 days utilising s 26 of the Sentencing Act 2017 (SA). That sentence was fashioned in the following way. The Learned Magistrate started with a head sentence of 18 months, which was reduced by 30 percent on account of the appellant’s guilty pleas to one year and 19 days. The Learned Magistrate further reduced the sentence by three months and three days for time spent in custody, arriving at the sentence of nine months and 16 days. The Learned Magistrate ordered the appellant serve five months imprisonment, with the balance to be suspended upon the appellant’s release from gaol on entering into a good behaviour bond for a period of two years, with other conditions.
The appellant appeals against sentence on the basis the Learned Magistrate erred in: failing to suspend the whole term of imprisonment (ground 1); failing to back date the sentence for the time already spent in custody (ground 2); imposing a partially suspended sentence in which the period of time to be served before the balance was suspended was manifestly excessive (ground 3); imposing a manifestly excessive sentence (ground 4); failing to provide adequate sentencing remarks (ground 5); sentencing the appellant for an offence he was not charged with (ground 6); and failing to give appropriate credit for an early guilty plea (ground 7).
The respondent appropriately conceded ground 6 and 7 are made out.
Held, per Kimber J, allowing the appeal:
1. The Magistrate erred in sentencing for a Theft when the relevant offence was an Attempted Theft which had a lesser maximum penalty.
2. The Magistrate erred in sentencing on the basis the appellant was entitled to a reduction of up to 30 percent for his pleas of guilty for all offences when for some offences the appellant was entitled to a reduction of up to 40 percent.
3. The appellant is re-sentenced to a single sentence of 10 months, with six months and 12 days of that sentence to be served in prison, and the remaining three months and 18 days suspended on a bond to be of good behaviour with other conditions.

Criminal Law Consolidation Act 1935 (SA) ss 134, 270A; Sentencing Act 2017 (SA) ss 26, 44(2), 96(4), referred to.
House v The King (1936) 55 CLR 499; Stenecker v Police [2014] SASC 68, applied.
R v Deng [2015] SASCFC 176, discussed.
Hurst v The Police [2014] SASC 52, considered.

BAGNARA v POLICE
[2022] SASC 62
Magistrates Appeal: Criminal
KIMBER J:
Overview

This is an appeal against the sentence imposed for 12 counts of Dishonestly Taking Property (Theft) contrary to s 134 of the Criminal Law Consolidation Act1935 (SA) (CLCA) and one count of Attempted Dishonestly taking Property (Attempted Theft) contrary to ss 134 and 270A of the CLCA. The maximum penalty for each Theft is 10 years imprisonment. The maximum penalty for the Attempted Theft is imprisonment for two thirds of 10 years.[1]
[1] Criminal Law Consolidation Act1935 (SA) s 270A.
The Learned Magistrate imposed a sentence of nine months and 16 days to commence on 22 March 2022, being the date of sentence. That sentence was partially suspended, allowing the appellant to be released after serving five months imprisonment on entry into a good behaviour bond for a period of two years. The Magistrate arrived at the sentence of nine months and 16 days after adopting a single starting point of 18 months, which was reduced by 30 percent for the pleas of guilty and a further three months and three days for time in custody.[2]
[2] On the hearing of the appeal, it was accepted the Learned Magistrate mistakenly understood the appellant had been in custody since 20 December 2021 when appellant had in fact been in custody since 17 December 2021.
The bond was for two years from the date of the appellant’s release and in the amount of $500. The remaining conditions were:
1.To be of good behaviour and comply with all the conditions of this bond.
2.To be under the supervision of a probation officer/community corrections officer for a period of 2 years and obey all the lawful directions given by the probation officer/community directions officer.
3.To report forthwith upon release to the Courts Unit of the Department of Correctional Services.
4.To attend drug and alcohol treatment courses and programs as recommended by the community corrections officer.
5.That you do not possess a firearm or ammunition or any part of a firearm.
6.That you submit to such tests (including testing without notice) for gunshot residue as directed.
The appeal was brought on the following grounds. The Learned Magistrate erred in:
1.Failing to suspend the whole term of imprisonment, there existing good reason to do so.
2.Failing to back date the sentence (as opposed to deducting) for the time already spent in custody.
3.Imposing a partially suspended sentence in which the period of time to be served before the balance was suspended was manifestly excessive.
4.Imposing a manifestly excessive sentence.
5.Failing to provide adequate sentencing remarks.
6.Sentencing the appellant for an offence he was not charged with.
7.Failing to give appropriate credit for early guilty plea.
The respondent concedes grounds 6 and 7 are made out. That concession is appropriate. The appeal must be allowed, the sentence set aside and the appellant resentenced. As a result, it is only necessary to deal with grounds 6 and 7, but I will say something about ground 2 as it has some relevance to resentencing.
Background
The offending involved what can be described as credit card fraud. I respectfully adopt the Learned Magistrate’s description of the appellant’s method which he used in most of the 13 counts. The Learned Magistrate said:[3]
… you were able to determine the algorithm to generate credit card numbers. You would damage your own card, requiring the store to manually enter your number into the EFTPOS terminal, you then enter the settings, putting in fraudulent credit card details resulting in transactions appearing complete.
[3]Remarks on Penalty of Magistrate Smolicz dated 22 March 2022, p 2.
Information dated 20 December 2021 (AMC-21-12206)
Nine counts of Theft and the count of Attempted Theft were on this Information.
The circumstances of those 10 counts were as follows.
On 2 August 2021, the appellant entered an On the Run store at Surrey Downs. He selected various items valued at $299. The appellant paid using false credit card details using the EFTPOS facility.
On 28 October 2021, the appellant attended a National Pharmacy at Ingle Farm. He purchased items with a total value of $441.81. He again used an EFTPOS terminal with false credit card details.
On 11 November 2021, the appellant attended a store at Broadview and purchased items through the EFTPOS terminal valued at $20. That transaction was declined. The appellant then took the EFTPOS terminal and manually entered the amount of $2,000 using false credit card details. He subsequently demanded the refund of the $2,000 which was given to him.
The next count relates to offending between 16 November and 18 November 2021. The appellant made multiple transactions and purchased multiple items, ordering them over the phone from a Mitre 10 store in Balhannah using false credit card details. The appellant collected some items with others being delivered to a Kennards Storage. The total loss to Mitre 10 was $10,371.
On 23 November 2021, the appellant attended Mowers Plus and purchased $1,721 worth of goods using false credit card details.
On 24 November 2021, the appellant attended a pharmacy at Alberton and made purchases totalling $604.13 using false credit card details.
On 6 December 2021, the appellant attended a service station in Mount Barker. He purchased $1,376.56 worth of goods using false credit card details. He later returned to the store again and made six manual credit card transactions totalling $3,970.90. The total amount stolen was $5,438.46.
On 9 December 2021, the appellant committed the Attempted Theft. The appellant attended a Liberty service station at Woodville. He attempted to purchase $478.76 of goods using fraudulent credit cards.
On 10 December 2021, the appellant attended a Liberty service station in Clearview and made two transactions using false credit cards details and totalling $997.79.[4] The appellant then tried to purchase $800 worth of gambling tickets, but only $300 worth of tickets printed, requiring the relevant employee to refund $500. As the employee could not refund the money using the EFTPOS machine, the appellant was offered $100 cash and to return to collect the remaining $400 the following day. The appellant took the $100 cash. The total amount involved was $1,786.70.
[4] The Liberty Service Station at Clearview Offence.
The final Theft on this information involved conduct between 10 December 2021 and 15 December 2021.[5] The appellant made transactions at Mazzone Jewellers using false credit card details and in a total amount of $7,280.
[5] The Mazzone Jewellers Offence.
Information dated 25 October 2021 (AMC-21-10573)
There was a single Theft on this Information. On 12 May 2021 the appellant attended Total Tools and stole a laser leveller valued at $299.
Information dated 28 October 2021 (AMC-21-12068)
There was a single Theft on this Information. One 20 June 2021, the appellant booked a hotel room at the West Beach Parks Motel and stole a television and coffee machine. The value of the goods taken was $1,095.
Information dated 28 October 2021 (AMC-21-10619)
The remaining count of Theft was on this Information. On 24 July 2021, the appellant attended the Soho Hotel and booked a room using a false credit card. The appellant took a coffee machine, DVD player, telephone, desk lamp and bath robes with a total value of $618.
Ground 6 – Sentencing the appellant for an offence not charged
Although one of the counts was an Attempted Theft, there is no dispute the Learned Magistrate erroneously described that offence as a Theft. The Learned Magistrate also fell into error in regarding the maximum penalty for that offence as 10 years. As set out above, the maximum for the Attempted Theft was two thirds of 10 years.
Ground 7 – Failing to give appropriate credit for the plea of guilty
When imposing a single sentence for the 13 counts, the Learned Magistrate stated the appellant was ‘entitled to a 30 percent reduction’ for the pleas of guilty. In treating that as the maximum discount available for all counts, the Learned Magistrate erred. A reduction of up to 30 percent was available for the offences on 12 May 2021, 20 June 2021, 24 July 2021, 16-18 November 2021, 23 November 2021, 6 December 2021, 9 December 2021, and 10 -15 December 2021.[6] However, a reduction of up to 40 percent was available for the offences on 2 August 2021, 28 October 2021, 11 November 2021, 24 November 2021 and 10 December 2021.[7]
[6] The Mazzone Jewellers Offence.
[7] The Liberty Service Station at Clearview Offence.
The two errors identified in grounds 6 and 7 constitute process errors within the description in House v The King.[8] It is necessary to set the sentence aside and resentence the appellant.
[8] House v The King (1936) 55 CLR 499, 505.
Ground 2 – Failing to backdate the sentence
Although it might be unnecessary to say anything about any other ground, I will make some observations about ground 2.
In ground 2 the appellant contends the Magistrate erred in failing to backdate the sentence. On the day of sentence, the appellant had been in custody since 17 December 2021. There is no dispute the whole of that period was available to be taken into account in sentencing for the offences the subject to this appeal.
Section 44(2) of the Sentencing Act, 2017 (Sentencing Act) provides:[9]
(2)     If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—
(a)     make an appropriate reduction in the term of the sentence; or
(b)     direct that the sentence will be taken to have commenced—
(i)    on the day on which the defendant was taken into custody; or
(ii)on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.
[9] Sentencing Act2017 (SA) s 44(2).
Where there is a continuous period in custody attributable to the sentence to be imposed, the preferable course is to backdate the sentence. Nonetheless, the decision is a discretionary one and, in this case, I would not find the Learned Magistrate erred in reducing the sentence by the time spent in custody.
I respectfully adopt the observations of Blue J in R v Deng:[10]
[10] R v Deng [2015] SASFC 176, [12]-[14] citing R v Newman (2004) 145 A Crim R 361, [29] per Howie J (McColl JA agreeing).
While the sentencing court has a discretion whether to give credit by backdating or reduction, at least when the time spent in custody is continuous, the manifestly preferable course is to backdate the sentence and non-parole period. This is reflected in its having become a much more common practice in recent years to backdate the sentence and non‑parole period in these circumstances than to reduce their length.
Giving credit by backdating rather than reduction has two principal advantages.
1. It promotes accuracy and transparency of the record… …
2. It promotes transparency of the sentencing remarks, making obvious both the fact and extent of credit being given and avoids subsequent arguments.
The following remarks of Howie J (with whom McColl JA agreed) in R v Newman are highly apposite in the present case.
The practice of backdating the sentence also makes it obvious to the offender that he, or she, has received a reduction in the sentence for the period already spent in custody. It ensures that there can be no argument… …
…it should be emphasised once again that backdating is the preferable course and it should be adopted unless it is clearly inappropriate to do so.
In this case, the appellant’s counsel before the Learned Magistrate (who was not counsel on the appeal) submitted the appropriate sentence was one of partial suspension. That sentencing option was only available if the sentence was less than 12 months.[11] Having arrived at a period of 12 months and 19 days after the reduction for pleas of guilty, a partially suspended sentence was precluded if the sentence was backdated. While unnecessary to decide, assuming a starting point of 18 months and single discount of 30 percent were appropriate, backdating the sentence might not have been in the interests of the appellant. While the Learned Magistrate was not bound by the submission of the appellant’s counsel, her submission appeared to accept only partial suspension was appropriate.
[11] Sentencing Act 2017 (SA) s 96(4).
The appellant submitted on appeal that if the reason for not backdating was to permit the imposition of a partially suspended sentence, that was an erroneous exercise of the sentencing discretion. The appellant referred to Hurst v The Police [2014] SASC 52 (Hurst).[12] In Hurst, David J held the sentencing remarks disclosed the Magistrate had failed to fix a sentence before considering whether good reason existed to suspend. It was in that context that David J held it necessary for the Magistrate to consider the length of the sentence independently of any questions of suspension. [13] In this case, I would not find the Learned Magistrate considered suspension before fixing the sentence. Unlike in Hurst, the sentencing remarks do not demand that conclusion.
[12] Hurst v The Police [2014] SASC 52.
[13] Ibid [15] per David J.
Re-sentencing
The circumstances of the 13 offences are set out above. The offending was persistent, occurring over almost six months. There was a degree of sophistication. The value of the property stolen in the completed offences was considerable, about $35,000.
The appellant is 27 years of age. Prior to the offending before the Learned Magistrate (which was not limited to the 13 offences subject of this appeal) the appellant had never been in custody. At the time of sentence, he had no prior convictions.
The appellant is one of seven children from a supportive family. He left school in year 10 and commenced employment. At the age of 25 he commenced a business in concreting, but that business failed. The failure of that business was, at least in part, due to the appellant’s drug addiction. The appellant commenced using ‘ice’ when he was about 16 years of age. The drug use increased when his partner’s father committed suicide. The appellant found him after he had taken his life.
The Learned Magistrate had a report from a psychologist, Ms Heinrich. I accept Ms Heinrich’s opinions the appellant had a number of active symptoms of Post-Traumatic Stress Disorder, has experienced persistent depression, presents with many traits of Borderline Personality Disorder and is at a high risk of relapse into drug use if not provided with adequate mental health treatment. The appellant’s mother is supportive, is in regular contact with him and will provide accommodation upon his release. There is hope of employment from two prospective employers. The appellant has gained some insight into his issues and has expressed a desire to engage in treatment. Nonetheless, I am satisfied the appellant’s risk of reoffending remains significant unless he abstains from drug use upon release. Personal deterrence remains important. General deterrence also has significance.
In resentencing I will use s 26 of the Sentencing Act and impose one sentence.[14] However, s 26(2a) of the Sentencing Act demands I indicate the sentence which would have been imposed had s 26 not been used.[15]
[14] Sentencing Act 2017 (SA) s 26.
[15] Ibid s 26(2a)
The three counts of Theft between 16 November and 18 November 2021, 6 December 2021 and between 10 December and 15 December 2021[16] involved property of substantial value. For each of those counts, had I imposed separate sentences, my starting point would have been three separate sentences of 10 weeks. For the other nine counts of Theft, had I imposed separate sentences, my starting point would have been nine separate sentences of 7 weeks. My starting point for the Attempted Theft would have been a sentence of 4 weeks. Had I imposed the 13 separate sentences, I would have given the maximum discount available for each offence.
[16] The Mazzone Jewellers Offence.
Using s 26 of the Sentencing Act, [17] for the five Theft offences committed on 2 August 2021, 28 October 2021, 11 November 2021, 24 November 2021 and 10 December 2021,[18] I adopt a single starting point of seven months. I would reduce that by 40 percent for the guilty pleas to four months, seven days.
[17] Sentencing Act 2017 (SA) s 26.
[18] The Liberty Service Station at Clearview Offence.

Using s 26 of the Sentencing Act, for the seven Theft offences committed on 12 May 2021, 20 June 2021, 24 July 2021, between 16 November and 18 November 2021, 23 November 2021, 6 December 2021 and between 10 December and 15 December 2021,[19] and the Attempted Theft on 9 December 2021, I adopt a single starting point of 11 months. I would reduce that by 30 percent for the guilty pleas to seven months, 22 days.
[19] The Mazzone Jewellers Offence.
Had the two separate sentences been imposed, some concurrency would have been necessary because of the close relationship between the two sets of offences. Using s 26 of the Sentencing Act,[20] for all 13 offences I identify a single sentence of 10 months.
[20] Sentencing Act 2017 (SA) s 26.
Good reason does not exist to suspend the whole of the sentence. The offending was persistent. The value of the property stolen was significant. There is a need for general and personal deterrence.
I order the sentence of 10 months commence on 17 December 2021. There is good reason to suspend part of that sentence. The appellant pleaded guilty. He has been in custody for more than six months. Before the spree of offending before the Learned Magistrate, the appellant had no convictions. A partially suspended sentence will properly combine the specific and general deterrent effects of a period of imprisonment with a subsequent period of rehabilitation under supervision in the community.[21]
[21] Stenecker v Police [2014] SASC 68, [14]-[15].
I order the appellant serve six months and 12 days of the sentence in prison. By my calculation, this should mean the appellant will be released no later than tomorrow. The remaining three months and 18 days will be suspended on a bond which will have effect on the appellant’s release from prison.
The conditions of that bond will be:
1.Length of Bond 18 months from release.
2.Amount $500.00.
3.To be of good behaviour and comply with all the conditions of the bond.
4.To be under the supervision of a community corrections officer for a period of 18 months and obey all the lawful directions given by the community directions officer.
5.To report forthwith upon release to the Courts Unit of the Department of Correctional Services.
6.To attend drug and alcohol treatment courses and programs as recommended by the community corrections officer.
7.That the appellant not possess a firearm or ammunition or any part of a firearm.
8.That the appellant submit to such tests (including testing without notice) for gunshot residue as directed.