BERRY v POLICE No. SCCRM-99-271 Judgment No. S168

[1999] SASC 168

BERRY v POLICE
[SASC] 1999 168

Magistrates Appeal

Debelle J (ex tempore)

1. This is an appeal against sentence. 

2. On 14 January 1999, at the Magistrates Court at Mount Gambier, the appellant pleaded guilty to breaking and entering a building occupied by the Australian Red Cross Society in stealing goods to the value of some $790.  He was sentenced to a period of four months imprisonment.  The appellant has appealed against the sentence.  The only ground of appeal is that the magistrate ought to have suspended the sentence. 

3. There were some aggravating features of the offending. The stolen property has not been recovered. It included a video cassette recorder. In addition, in the course of breaking into the premises occupied by the Red Cross Society, some $1,000 worth of damage was caused. When arrested, the appellant sought to minimise his involvement in the offence.  He suggested that he was only keeping watch for an accomplice.  Later inspection of the premises showed his fingerprints were on a cash box and on a filing cabinet in the premises. 

4. The appellant was aged 21 years when sentenced.  He has a number of offences in the Northern Territory as a juvenile between 1990 and 1994.  Many are for the unlawful entry into buildings and for stealing.  He has not, however, offended since May 1994.  The last sentence ordered in the Northern Territory was for a period of imprisonment for 15 months for offences of unlawful entry and stealing.  The sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of two years.  He has complied with the terms of that bond. 

5. The appellant has had a most unfortunate childhood and has been offending since he was about 13.  Although his initial offending was as a result of what is said to be emotional deprivation, later offending was for the purpose of serving his habit of smoking marijuana very heavily.  He has submitted to a drug rehabilitation program and vocational training. The appellant's educational level is low.  It is said that he is almost illiterate.  The appellant came to Mount Gambier some 13 months ago.  He obtained some casual employment.  He is now unemployed and in receipt of unemployment benefits.  He lives with a woman he proposes to marry.  He is undertaking some training for the purpose of obtaining a licence to drive a forklift.  He believes that there are some prospects of employment as a forklift driver. 

6. It is apparent from the sentencing remarks that the magistrate believed some steps should be taken to assist the rehabilitation of the appellant. The course taken was to have regard to the usual penalty for a first offence of breaking and entering and then substantially to reduce that period of imprisonment.  The magistrate said:

   “The defendant will be sentenced to four months imprisonment forthwith. The prospects for his rehabilitation are taken into account in the reduction of two months from the suggested six months head sentence in Halse (albeit that this suggested sentence is frequently suspended). 

   However, I am not persuaded, given the aggravating circumstances of the offending, that it is appropriate to suspend in this case.  In my view, the best course is to impose a sentence which is over and served when the defendant has completed it.  He can then put the whole lot behind him and keep going with his life without having old charges or parole or a suspended sentence hanging over him.”

7. The reasoning of the magistrate is not consistent with the approach which this court has recommended.  The proper approach is to decide first whether there is an appropriate alternative to imposing a sentence of imprisonment.  If the answer to that question is in the negative, it is then necessary to decide what was the proper term of imprisonment to be imposed and then, and only then, to decide whether it would be appropriate or inappropriate to suspend the term of imprisonment:  R v Palliaer (1984) 35 SASR 569 at 571 per Mitchell ACJ. See also R v Wilton (1981) 28 SASR 362 at 367.

8. Nevertheless, the sentencing discretion should not be unduly circumscribed.  There may be circumstances which entirely justify a sentence which is substantially less than what would ordinarily be ordered, for the purpose of administering what has been called a short, sharp shock for the purpose of reminding the offender of his obligations to the community.  This may have been what induced the magistrate to impose this sentence. 

9. Nevertheless, it does seem that the magistrate has failed to have regard to the first question, namely, whether there is no alternative to a period of imprisonment. I think that the exercise of the sentencing discretion has miscarried. 

10. In this case the court had to deal with a young man who, despite several years of offending as a juvenile, had for some four years not offended again.  This was the first occasion upon which he was being sentenced as an adult.  He had obtained casual employment which was available to him. Although unemployed, he was training to be a forklift driver.  There are some prospects of employment.  He is living in a de facto relationship where he must assume some responsibility.  These are all pointers to the potential for rehabilitation of this young man. 

11. The appellant also offers to make restitution, if his sentence is suspended.  He expresses contrition for his actions.  There are, as Mr Lesses has mentioned, the aggravating features of this offending. Nevertheless, I think it is appropriate that the appellant should be given a final opportunity of reforming his conduct.  A period, albeit a short period, of imprisonment is unlikely to lead to the rehabilitation of any offender. The prison system is not distinguished by its capacity to rehabilitate those who pass through its doors. 

12. This was a case where the magistrate ought to have considered whether imprisonment was required and, if it was, then consider the term of imprisonment to be ordered, and then consider the question of suspension.  The appropriate period of imprisonment for this offence would, in the ordinary course, be a period of nine months imprisonment.  It could not, I think, be any less, given the appellant's prior record.  The magistrate ought to have ordered that period and then suspended the sentence, in order to give the appellant an opportunity to demonstrate his capacity to rehabilitate himself. 

13. The course which the magistrate has adopted makes it difficult for an appellate court on reviewing the sentence.  The appellant has been told by the magistrate that his sentence would be four months imprisonment. He has appealed on the ground that it should be suspended, which creates a difficulty in that the appellate court is, for understandable reasons, reluctant to increase a sentence.  I have found this a difficult appeal to determine.  I think that, in the ultimate result, the interests of the community and rehabilitation of offenders must, in the end, prevail over what might be perceived to be an inadequate sentence.   I am encouraged to adopt this course by reason of the fact that the appellant has already served a period of one month's imprisonment, which will be a sharp reminder to him that he should not offend in this way.

14. In all the circumstances, I think that the appropriate order is to allow the appeal and to vary the order of the magistrate by suspending the term of imprisonment.  The fact that the appellant has served one month's imprisonment will mean that if he offends again, he will have to serve the balance of the period ordered by the magistrate.  The sentence should be suspended upon the appellant entering into a bond to be of good behaviour for a period of three years.  I fix the amount of the bond in the sum of $750.   It will be a term of the bond that the appellant pay the sum of $1,000 by way of partial restitution for the loss and damage suffered by the Australian Red Cross Society. That amount is to be paid within 18 months at the rate of $55 per month.  The payments will be made to the Registrar of the Court at Mt Gambier to be held on behalf of the Red Cross Society.  Another term of the bond is that, within six weeks, the appellant, in company with his probation officer, shall attend and apologise to a proper officer of the Australian Red Cross Society. There will also be a condition of the bond that he be under the supervision of a probation officer and act in accordance with the directions of that probation officer.  The respondent will pay the appellant’s costs which I fix at $120. There will be orders accordingly.