Blackman v Police No. Scgrg-98-186 Judgment No. S6599

[1998] SASC 6599

BLACKMAN  v  POLICE

Magistrates’ Appeal

Bleby J

HIS HONOUR:         This is an appeal against sentence.  On 9 December 1997 the appellant pleaded guilty in the Magistrates Court sitting at Elizabeth to a number of charges.  He was sentenced on 22 December 1997.  I will come to the details of the sentence in due course.  There were five charges. 

The first was one of unlawful possession, in that on 22 May 1997 at Port Lincoln, the appellant had in his possession two compact discs, three watches, three wallets, two keys and a key tag card wallet, a cash tin, a wave ring, a silver chain and a gold chain, which either at the time of such possession or at a subsequent time before the making of the complaint, were reasonably suspected of having been stolen or obtained by unlawful means. That was an offence contrary to s41 of the Summary Offences Act.  It carries a maximum penalty of two years’ imprisonment or a fine of $8,000. 

The brief background to the circumstances of that offence was that on 13 May 1997, at a place called St Josephs Boarding House in Port Lincoln, which is a place which houses some 45 students, that house was broken into and some 21 out of about 24 rooms were disturbed.  There were many items of value and money taken.  Many of the goods, and in particular the goods the subject of the unlawful possession charge, were subsequently identified by the owners as being goods removed from the rooms of the residents of the boarding house, on the occasion when it was broken into.  The property was found at the appellant’s premises on 22 May.  He falsely claimed that some of the property in his possession was his at the time he was being questioned. 

The second count was one of false pretences. In respect of that charge, it was alleged that on 20 May at Port Lincoln, with intent to defraud, he obtained from Eyre Peninsula Pawnbrokers the sum of $65 by falsely pretending that he was the owner of 15 musical compact discs. In fact, the discs had been stolen. Some of them had come from St Josephs Boarding House and some had come from the Skillshare classroom in the Port Lincoln Social Security building. That offence was contrary to s195(1)(a) of the Criminal Law Consolidation Act 1935 and carries a maximum penalty of four years imprisonment.

The third count was one of receiving; that between 8 and 20 May 1997 at Port Lincoln he received 15 compact discs together of the value of $375, knowing them to have been obtained in circumstances amounting to an offence. These were the same compact discs that were the subject of count 2. This offence, contrary to s196(1) of the Criminal Law Consolidation Act 1935, carries a maximum sentence of eight years’ imprisonment. 

All those three offences that I have just referred to occurred at Port Lincoln within a relatively short period of time. 

The fourth count was one of larceny of money to the value of $815, being the property of Joe’s poultry at Elizabeth West, and that occurred on 3 September 1997. That offence was contrary to s131 of the Criminal Law Consolidation Act and carries a maximum penalty of five years’ imprisonment.  The appellant was apprehended by staff working at the premises, he having been on the premises and having removed some $815 from an open safe.  The money was returned to the staff after his apprehension. 

The final count was one of giving a false name. On 3 September 1997 at Davoren Park, he was reasonably suspected by a member of the police force of having committed the offence of larceny, being the offence in count 4, and on being required by a member of the police force to state his name, stated a name that was false. He was apprehended by police in a vehicle and gave a false name. That offence was contrary to s74a(3)(b) of the Summary Offences Act and carries a maximum penalty of 3 months’ imprisonment or a fine of $1,000. 

The appellant had been sentenced some time before in the District Court of South Australia for offences of larceny, common assault and robbery with violence.  He was on parole at the time he committed all these offences.  In respect of the offences committed in May in Port Lincoln, the appellant failed to answer his bail on 12 August 1997.   For that reason, his parole was revoked by the Parole Board as from 4 September 1997.  He had, therefore, been in custody for a little over three months at the time of his plea on these offences. 

The magistrate was informed that the unexpired period of his parole was 7 months and 28 days “as of 20 May 1997”, being the date of the first of the offences in Port Lincoln. That period plainly allowed for the further period of the sentence which had to be served on cancellation of his parole by the Parole Board. It was on that basis that the magistrate proceeded to sentence the appellant and in the knowledge that, with the imposition of a custodial sentence, that period would now have to be served by virtue of s75(1) of the Correctional Services Act 1982.

I am not sure that on a literal application of s75(1) of the Correctional Services Act 1982, it is permissible to give credit for the sentence served on cancellation of parole after the date of the offence. There is plainly an injustice if credit cannot be given for such a period. That matter was raised in the case of R v Panagiotidis, (Unreported, Court of Criminal Appeal, 5 June 1987, Judgment No 9927; Butterworth’s Unreported Judgments, No BC8700299). The then Chief Justice described the failure to take such time served into account as “an irrational and unjust result”. He went on to say: “Clearly s75(1) (of the Correctional Services Act) is not to be read in isolation and out of context.   It is expressed to be “subject to this Part”.  Section 74(1) is contained in the same Part of the Act”.  

Section 74(1) is the section under which the parole board can revoke parole.  He went on to say: 

“I have no doubt that where a prisoner serves a further part of his sentence in consequence of s74(1), that further part of his sentence must be deducted from the unexpired balance which he is required to serve pursuant to s.75(1).”

However s75(1), although it is still in the same Part of the Act, has been amended since then and no longer contains the qualification “Subject to this part”, thus raising the possibility that such periods in custody may now have to be ignored for the purposes of s75(1). I have not heard argument on the point and, in view of the decision I am about to make, it does not matter. However, I draw attention to those concerned of the possibility of an anomalous and unjust situation arising, if my understanding of the legislation in its present form is correct.

The sentences actually imposed by the learned magistrate were as follows.  In respect of the offences of unlawful possession, false pretences and receiving, that is the Port Lincoln offences, the magistrate imposed a sentence of imprisonment for 9 months.  As these offences were committed while the appellant was on parole, the sentence would commence upon the expiration of the balance of the former sentence, being the 7 months and 28 days to which I have already referred.  In respect of the offences of larceny and giving a false name, the appellant was sentenced to 6 months’ imprisonment, cumulative upon the 9 months.  The total sentence to be served, including the unexpired balance of the former sentence, assuming it to be correctly calculated, therefore amounted to 1 year, 10 months and 28 days.  The learned sentencing magistrate did not see fit to fix a non-parole period. 

The grounds of appeal as amended allege that “the learned stipendiary magistrate erred as a matter of principle in a number of ways, each of which had an effect on the sentence” and that “the sentence is manifestly excessive in each of its components save for the head sentence”.  

In other words, the essence of the complaint is that the sentence should have been suspended or, alternatively, that an appropriate non-parole period should have been fixed. 

I have already referred to the nature and circumstances of the offences.  The appellant is presently aged 20.  A pre-sentence report showed that at about the age of 2, he was placed in foster care in Port Lincoln with a supportive family with whom he stayed for some 13 years until that foster family moved to Tasmania.  He was unable to accompany them because he was the subject of a care and control order of this State until the age of 18.  He then lived a somewhat unsettled life with his mother and a friend in turn, and this unsettled period showed a heightened experimentation with drugs and an increase in offending behaviour.  After some break in his education, he completed year 11 in 1994 at the age of 17.  Since then, he has studied for and obtained post-secondary certificates in swimming instructing and in first aid.  More recently, until he was in custody, he has been living with friends at Hackham, to whom he refers as his foster parents.  They have been, and continue to be, supportive of him.  So far as his employment is concerned, it has been largely casual and short term and not consistent.  It has included being a part-time swimming instructor at the North Adelaide swimming centre.  He has had one relationship which led to the birth of a child in 1995.  He is presently unaware of the whereabouts of his former partner and of their child. 

He acknowledged to a probation officer, who prepared a pre-sentence report, consistent use of marijuana since the age of 12 but, to quote from the report, “did not consider his use of marijuana to be problematic”.   The probation officer noted that on an earlier occasion he had acknowledged abuse of speed.  He denied to the probation officer that the September offences were committed to support a drug habit. 

His offending history is long.  It began in 1993 with appearances in the children’s court at Port Adelaide.  He has had convictions for driving or using a motor vehicle without consent, larceny, receiving, for giving a false name and address, for driving a vehicle without insurance, driving a vehicle unregistered, driving under disqualification, possessing a nominated controlled substance, and I have already mentioned robbery with violence.  He has been convicted of common assault on a person other than a family member and possessing equipment to administer a drug.  For those offences, he has had a full range of community based sentences or custodial sentences.  There have been many other offences for which no conviction has been recorded by the courts, but where fines or community service orders have been imposed. 

Whilst he was on parole, he responded well initially when he maintained contact with his parole officer, but has a poor record of reporting compliance. 

Up to the time when he was taken into custody in early September 1997 the appellant had nothing to commend him for any leniency at all.  It was put by his counsel before the magistrate and before me that events since then indicate that the appellant has reached a turning point in his life and may have started genuinely to try and rehabilitate himself.  His counsel’s submission is that his previous life of crime has been essentially drug driven to support a habit that he began at the age of 12, principally involving marijuana, but embellished from time to time by harder drugs.  That submission is not entirely consistent with some aspects of the pre-sentence report of the probation officer, but even that must be read with some caution to allow for the possibility that at that interview, he may have perceived it to be in his interests to minimise the role of drugs in his life, and there may have been some innocent misunderstanding or interpretation of what he said. 

Since his return to custody, however, he has voluntarily enrolled in the Drugs other than alcohol component of the Aboriginal Drug and Alcohol Council Peer Education Course, involving a total of 32 contact hours over a period of eight weeks.  On the two days a week when the course was held, he had to sacrifice his recreation and gym hours in the gaol.  This meant that he was confined to his unit for the balance of those days.  He actively sought out participation in the course, and may well have suffered some degree of odium from other inmates for so doing.  He has expressed a desire, if released, to attend a drug rehabilitation centre to further deal with and overcome his drug use.  He has been made aware of the strictures that this would involve, but his enthusiasm to undertake further serious rehabilitation has not been dampened. 

It was suggested, therefore, that the appellant had reached a cross road in his life, that a further substantial custodial sentence would condemn him to a continuing life of petty and, perhaps, worsening crime.  On the other hand, at the age of only 20, he has now perhaps the most optimistic prospect of rehabilitating himself, not only by overcoming any drug problem, but with the support of his newly found adoptive family, to become a useful and productive member of society.  All that was put to the magistrate. 

After hearing submissions, the learned magistrate remanded him in custody for almost two weeks.  The magistrate’s remarks on sentence were abrupt and to the point, occupying less than one full page of double spaced transcript.  He claimed in his opening words to have taken “all those matters into account” in imposing the penalty.  In the circumstances of the offending he regarded immediate imprisonment as the only appropriate penalty.  He said “I do not regard your activities whilst in custody as sufficient to cause me to impose any other type of penalty”.  The activities referred to can only be the participation in the ADAC course.  However, whether the learned magistrate merely regarded that as some sort of attempt by the appellant to redeem himself in the eyes of the court, or whether he considered it might have some implications in the future, is not clear from his sentencing remarks.  There is no indication that serious or any consideration was given to the possibility that the appellant might have begun to turn a rehabilitation corner and whether, in the light of his youth, he should now be given a chance to prove that.  Indeed, by declining to fix a non‑parole period, the magistrate seems to have dismissed any prospect of rehabilitation at all. 

In that respect I believe the magistrate erred, and that consideration of such a prospect should have been given.  There is no doubt that his criminal history militates against any prospect of successful rehabilitation.  It militates against heavy weighting of rehabilitation in the sentencing process.  Nevertheless, if the appellant can demonstrate a serious prospect of successful rehabilitation, that prospect should not be overlooked in the interests both of the appellant and of the community at large: Power v French (1973) 6 SASR 100, per Hogarth J at 106. Particularly is this so where an offender is of an age at which courts still encourage real prospects of rehabilitation: Yardley v Betts (1979) 22 SASR 108, per King CJ at 112. There is a real sense in which rehabilitation, if successful enhances the protection of the community.

Although the appellant has been a consistent drug user for more than 8 years, that, in itself, is not a mitigating factor.  One cannot overlook that much of that time covered a period when he was not really in a position to make an adult judgment.  That is relevant in evaluating the extent to which he should be punished for consequent criminal conduct and in evaluating the prospects now, at a more mature age, of rehabilitation: Douglas v R (1995) 56 FCR 465 at 470.

According to his counsel, one of the keys to the appellant’s rehabilitation is the overcoming of his drug problem, which it is said has been driving his previous offending.  Whether that is so might be considered to be a matter of some doubt upon some aspects of the face of the pre-sentence report.  On the other hand, there are indications in the report that his drug problem was greater than he was then prepared to admit to.  His acknowledgment of such a problem gains substantial weight with the lengths to which he was apparently prepared to go to confront the problem whilst in custody.

I am prepared to accept, for present purposes, that he does have a problem and that he has sought to confront it.  If I am wrong and his offending has not been related to his drug activity, then his activity in gaol was merely a subterfuge.  If that is so, then the sentence I propose will soon see him back in custody to serve his proper sentence.  However, on the basis that drugs have played a substantial part in his offending, I agree with his counsel, that the appellant has reached a turning point in his life.  A custodial sentence of the type imposed, together with the obligation to serve the balance of the unexpired term of the previous sentence, whatever in law that might turn out to be, is likely to shut the door to any further rehabilitation, with the grave risk that he will become an institutionalised offender, a factor recognised by Jacobs J in R v Szabo (1984) 36 SASR, 594 at 600.

There is a limit to what can be achieved while the appellant is in custody and there is more to his rehabilitation than merely quitting himself of drug use.  Rehabilitation will not only require drug rehabilitation, but effective supervision by a competent probation officer.  I am further satisfied that if such a programme is to be embarked on it needs to be done sooner, rather than later.  That militates against a custodial sentence with the fixing of a non‑parole period.

Another compelling factor in favour of a suspended sentence is his age, and the need not to close the door too early in his life, to the possibility of effective rehabilitation. 

I have given anxious consideration as to whether the release of the appellant on a suspended sentence, would give undue prominence to the rehabilitation aspects of sentencing, to the undesirable suppression of other aspects of community protection such as punishment and deterrence, both personal and community.  However, I approach the sentencing task with one advantage the learned magistrate did not have.  The appellant has now been in custody for nearly six and a half months, as a combination of his breach of parole, for behaviour related to these offences, and by virtue of the learned magistrate’s order the subject of this appeal.  That can be regarded as accommodating, at least to some extent, the requirements of punishment and community protection at a time when it was most appropriate.

I am also satisfied that, in the circumstances, suspension of the custodial sentence is preferable to imposing one with a non‑parole period.  By that means, some appropriate conditions of the suspension can be imposed and directed towards his proper rehabilitation which cannot be done by mere release on parole.

The sentencing process is never infallible and I may be giving credit to the appellant where no credit is due.  To guard against that possibility, it will be necessary, if the sentence is now to be suspended, that stringent conditions are imposed.  The keeping of those conditions, if the appellant is genuine in his submissions, should not be particularly onerous.  But if I have misread the position, they will ensure, if he is not genuine, that if he breaches any of the conditions, the full weight of the custodial sentence will be felt and given effect to.  I, therefore, propose to direct, that the sentence imposed by the learned magistrate be suspended, upon the appellant entering into a bond, in the amount of $500, to be of good behaviour for a period of 12 months from the date of the bond.  The conditions of the bond that I propose are as follows:

1. That the appellant be of good behaviour and comply with all the conditions of the bond.

2. That he be under the supervision of a probation officer for a period of 12 months and obey the lawful directions given by the probation officer.

1. That he performs 200 hours of community service within 12 months from the date of the bond, and obeys the lawful directions of the community service officer to whom he is assigned.

2. That he reports within 2 working days of having signed the bond, at the offices of the Department of Correctional Services at the Noarlunga Community Centre.

3. That he abstains from taking drugs of any sort, including cannabis, other than drugs prescribed and in the quantity or quantities prescribed by a legally qualified medical practitioner.

4. That he obeys such directions as a probation officer may give as to drug rehabilitation or other treatment, including directions as to attendance for assessment as to his suitability for a Cognitive Skills Course, and that he attend such course as and if directed.

   Mr Blackman, the effect of the order that I propose is, that the sentence of the magistrate remains, which is a sentence of 15 months gaol in total, but it will be suspended while you comply with the conditions of the bond which I have just read out.  I do not propose to fix a non‑parole period because if you are ever called upon to serve the sentence you may also be required to serve any unexpired portion of your previous sentence.  That, at this stage, could be of uncertain duration.  It is more appropriate that any non‑parole period, if it is appropriate to be fixed at all, be fixed at that time.  Upon your acknowledging the bond, you will be free to leave.  But, you must report within 2 working days to the Noarlunga Community Correctional Centre unless directed otherwise.  I have been prepared to give you one chance to put your life in order.  If you breach any of the conditions of the bond you will be liable to serve the full sentence and any other unexpired portion of your parole from the previous sentence. 

   You have reached a crossroad in your life.  You can take this chance to rehabilitate yourself; it will probably be the last one you get.  If you abuse that chance and do not comply with the conditions, to use the words of your own counsel, “you are gone for all money”.  You will not be able to expect any further sympathy.  If you are genuine in what your counsel has put, you should have no difficulty in complying with the conditions of the bond.  If you are not genuine you will probably soon fall foul of those conditions and if that happens, you are unlikely ever to have a second chance.  Do you accept the bond and the conditions which I have read out?

PRISONER:  Yes, I do.

HIS HONOUR:  The order of the court will be that the appeal is allowed.  That the sentence of imprisonment imposed by the magistrate will be suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for a period of 12 months upon the conditions which I have read out.

BOND ACKNOWLEDGED