Bates v Police No. Scciv-02-26

[2002] SASC 52

BATES  v  POLICE
[2001] SASC 52

Magistrates Appeals: Criminal (ex tempore)

1. DOYLE CJ:            The appellant appeals against sentences imposed by the Magistrates Court for a number of offences. The offences were committed between August and October 2001.  All of them were committed at Moonta, a town northwest of Adelaide.

2. In order of date of offence the offences and the sentences are as I will now summarise.

3. On 21 August, two counts of larceny of signs and one count of unlawfully damaging two signs. On the first larceny count the Magistrate sentenced the appellant to three months imprisonment, on the second larceny count and the unlawful damage count, the Magistrate sentenced the appellant to imprisonment for nine months to be served concurrently with the first sentence.

4. On 23 August, one count of disorderly behaviour. The Magistrate convicted the appellant without penalty.

5. On 27 September 2001, assaulting a police officer in the execution of his duty. The Magistrate sentenced the appellant to three months’ imprisonment, cumulative upon the sentence of nine months making a total head sentence at that stage of 12 months’ imprisonment.

6. Between 9 October and 11 October, entering a residence as a trespasser with the intention of committing larceny and larceny of electrical goods valued at about $2000. The Magistrate imposed a single sentence of 22 months’ imprisonment, cumulative on the previous sentence. That makes a total head sentence to that stage of two years ten months.

7. On 9 October 2001, entering a shop as trespasser with intent to commit larceny and larceny of goods to the value of about $2800. On the same date failure to comply with the bail agreement and unlawful damage to two further shops. On these counts the Magistrate imposed a single sentence of imprisonment for 19 months cumulative on the last two sentences.

8. That produced a total head sentence of four years five months or 53 months. The Magistrate fixed a non-parole period of 33 months.

9. The appellant pleaded guilty to all counts. By and large, when spoken to by police, he admitted his guilt in relation to the offences. All or most of the stolen property was recovered. It seems unlikely that the appellant will compensate the victims for the damaged property. The assault on the police officer did not involve any injury to the police officer but did consist of serious threats made to the police officer, who was unaided at the time.

10. The offences all seem to have been committed when the appellant was seriously affected by drugs and alcohol. It seems clear that the appellant was a regular source of trouble in Moonta, behaving in a completely antisocial manner.

11. The appellant is 20 years old.  His childhood was seriously disturbed according to the pre-sentence report. He was not given a proper upbringing, he was in fact mistreated and he began to abuse drugs and alcohol from a young age. His education is very limited. He has had little work experience. All these indicate that his prospects are not good.

12. The appellant has a long list of prior offences committed in Western Australia and South Australia beginning when he was 15 years old. The offences are matters such as assaults, stealing, burglary, disorderly behaviour and so on. Some of them are minor, some are moderately serious. On a number of occasions he has been given the benefit of a bond and on a number of occasions he has breached a bond. He has served terms of imprisonment before.

13. Judged by his record the appellant is unwilling to behave in an acceptable manner for any length of time. I realise that his upbringing and background play their part. He has not been taught appropriate behaviour. But now he seems to be at a kind of crossroad, facing his first significant prison sentence.

14. The Magistrate had no choice but to impose sentences of imprisonment. The appellant has a bad record, he has been given the benefit of lenience before and he has not responded. The time has come at which an emphasis on deterrence is appropriate. This is so despite the fact that the appellant is only 20 years old and despite his disturbed childhood. The court must do what it can to protect those people who come in contact with the appellant or who live near him. The court has to do what it can to deter him. Unless the appellant is persuaded to break his dependence on drugs and alcohol his prospects are not good. While lenience must always be considered, the appellant has reached a stage, as I said, at which deterrence has become a significant factor.

15. I consider that I should not interfere with the head sentences. In my opinion, they are appropriate in all the circumstances. I am not able to say that they are excessive.

16. I turn to the non-parole period. The non-parole period of 33 months is a little more than 60per cent of the head sentence. Even the non-parole period is a much longer term than the appellant has served previously. I consider that the appellant’s youth in particular and considerations of totality did call for a lower non-parole period. It is permissible to give greater weight to personal factors here and I am prepared to do so, I am particularly concerned to encourage the appellant to take stock and to grasp what may be his last chance to avoid a lengthy term of imprisonment.

17. I would set aside the non-parole period and fix a non-parole period of two years. Even this is unusually low. It is intended to give the appellant a last chance, even though his prospects do not seem particularly good. This low non-parole period should ensure that the appellant has time to reflect in prison on where he is going but also a substantial period on parole during which he will receive help in changing his ways.

18. Accordingly, I order that the appeal be allowed but only for the purpose of setting aside the non-parole period and substituting a non-parole period of 24 months to commence from the date when the head sentences began on 12 December 2001.