Bourne v Police - [2005] SASC 65

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BOURNE v POLICE
Judgment of The Honourable Justice Besanko
23 February 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Appeal against sentence imposed by Magistrate - appellant pleaded guilty to three counts of theft and one count of larceny - Magistrate recorded a conviction in relation to each charge and imposed a single sentence of 6 months imprisonment, suspended upon appellant entering into a 3 year good behaviour bond and performing 180 hours of community service within 9 months - whether the sentence is manifestly excessive - where appellant had an appalling criminal record - Magistrate erred because he placed excessive weight on appellant's criminal record and/or because he failed to consider the sentencing package as a whole - appeal allowed - sentence of 6 months imprisonment imposed, suspended upon appellant entering into an 18 month good behaviour bond and performing 90 hours of community service within 12 months.
Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 ss 47, 131, 134; Criminal Law (Sentencing) Act 1988 ss 11, 18A, referred to.
House v The King (1936) 55 CLR 499, considered.

BOURNE v POLICE
[2005] SASC 65
Magistrates Appeal

BESANKO J: This is an appeal against a sentence imposed by a Magistrate. The appeal is brought pursuant to section 42 of the Magistrates Court Act1991.
The offences and the approach of the Magistrate
The appellant is Laura Roann Bourne and she was charged on two complaints with four offences.
The first complaint was made on 24^th July 2002 and charged the appellant with an offence under s 131 of the Criminal Law Consolidation Act1935 (“CLCA”). The particulars of that charge were that on 9^th March 2002 at Kilkenny in the State of South Australia the appellant stole confectionary of the value of $10.27 the property of Bi-Lo Supermarkets.
The second complaint was made on 23^rd June 2004 and it charged the appellant with three offences under s 134(1) of the CLCA. It was alleged that she was guilty of theft in that she dealt with property dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property. The maximum penalty for an offence under s 134 is imprisonment for ten years. The particulars of each of the charges were that on 12 December 2003 at Glenelg in the State of South Australia:
1The appellant committed theft by taking stickers and a snake ornament of a value involving $2,500.00 or less the property of Cheap as Chips dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights.
2The appellant committed theft by taking toiletries of a value involving $2,500.00 or less the property of Woolworths (SA) Pty Ltd dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights.
3The appellant committed theft by taking clothing of a value involving $2,500.00 or less the property of Zoom boutique dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property and to make a serious encroachment on the owner’s proprietary rights.
The four charges came before a Magistrate on 17^th September 2004. The appellant pleaded guilty to each charge. After hearing submissions, the Magistrate decided to impose one penalty for the four offences (s 18A Criminal Law (Sentencing) Act1988 (“CLSA”)). He recorded a conviction in relation to each charge and he imposed a sentence of imprisonment of six months. He suspended the sentence of imprisonment upon the appellant entering into a bond to be of good behaviour for three years in the amount of $10.00. The conditions of the bond were as follows:
1.The appellant is to be of good behaviour and comply with all the conditions of the bond.
2.The appellant is to be under the supervision of an officer from the Department for Correctional Services for 18 months and obey all lawful directions of the assigned supervising officer.
3.The appellant is to undertake such counselling and programs including psychiatric counselling, assessment and treatment as from time to time directed also including financial counselling and victim awareness.
4.The appellant is to perform 180 hours of community service within nine months and to report forthwith to the Court’s Unit of the Department for Correctional Services.
The record of the Court shows that the 180 hours of community service were to be performed within 9 months, but the Suspended Sentence Bond signed by the appellant requires performance of the 180 hours of community service within 12 months.
The period of the bond was the maximum permitted under the Criminal Law (Sentencing) Act 1988 (“CLSA”) (s 40).
The appellant appeals against the sentence imposed by the Magistrate.
I turn now to outline briefly the circumstances of the offending. At about 10.20 am on Saturday, 9^th March 2002 the appellant was seen by security officers at the Bi-Lo supermarket Kilkenny running towards the confectionery aisle, selecting confectionery items and then running back out of the store with the items in her left hand without stopping at a checkout to make payment for the items. The appellant was chased by store security who apprehended her outside the store and then escorted her back to the store to await the arrival of police. The confectionery items were valued at $10.27, and could not be put back onto the shelf for resale as they had been handled by the appellant.
At about 12.25 pm on 12^th December 2003, a security officer on duty at the Cheap as Chips store at Glenelg saw the appellant select four packets of stickers and conceal these items in a plastic bag which she put under her t-shirt. The security officer then saw the appellant place a snake ornament into the same bag and leave the store without declaring any items for payment at the checkout. The security officer stopped the appellant outside the store and had a conversation with her. The appellant was escorted back into the store to await the arrival of police. The value of the property stolen by the appellant was $18.95. The police arrived and had a conversation with the appellant who produced a number of items from the plastic bag. She stated that she had made no payment for these items. The items included shampoo and toothpaste. These items were shown to the store supervisor at the Woolworths store, Glenelg and he identified them as property belonging to Woolworths. The value of the property stolen from Woolworths was $10.07. Police also located a t-shirt and this was shown to the store manager at the Zoom boutique, Glenelg, who identified it as the property of that business. The value of the property stolen from Zoom boutique was $18.00.
I turn now to consider the appellant’s personal circumstances.
The appellant was born on 6 November 1971 and was 30 years of age at the time of the offence in March 2002 and 32 years of age at the time of the offences in December 2003. The appellant had a difficult childhood. She completed Year 10 at Brighton High School and has recently expressed an intention to return to adult education to undertake a computer course. She has two children, a daughter who is ten years of age and a son who is three years of age. The appellant’s husband committed suicide in 2002.
The appellant has been a user of heroin and is currently on a methadone programme. The appellant states that she has not used heroin for a considerable time and that the motivating factor in her change of lifestyle was the death of her husband and the need for her to care for her daughter.
The appellant has a long history of offending which started in 1987 when she was 16 years of age.
The appellant said that she committed the four offences which are the subject of this appeal because she needed to obtain food and other items. In other words, she said that she offended because of her financial difficulties.
The author of a pre-sentencing report which was put before the Magistrate expressed the view that the appellant was willing to accept direction and support in making positive behavioural changes in her life. The author also expressed the view that the appellant would benefit from various forms of counselling.
The above matters were before the Magistrate when he came to sentence the appellant. The Magistrate made brief remarks before passing sentence. He described the appellant’s criminal record as appalling and very bad. He said that it was important that he not use her criminal record inappropriately. However, he noted that her record was relevant and if used as permitted, “it is a guide to the courts as the penalties the Court must imposed (sic) for the habitual offending”.
The Magistrate said that the appellant committed ten offences between 8^th December 2000 and 18^th March 2002 for which she was sentenced on 13^th August 2002. For some reason, one of the offences before the Magistrate, that is, the offence committed on 9^th March 2002, was not dealt with as part of the matters dealt with on 13^th August 2002. The sentence imposed by the Magistrate with respect to the ten offences was a sentence of imprisonment for six months which was suspended for nine months. The Magistrate noted that some five or six months after the expiration of the bond the appellant committed the offences in December 2003. The Magistrate then said:
“Your counsel insists that you have turned a new leaf and changed your ways. I do not accept those submissions at face value.
He told me that you stole on 12 December 2003 because you were short of funds and you were financially strapped. You stole for need, but you did so by committing three separate acts of criminal activities in that you entered three separate stores and you stole from three separate stores.
The amount of property you stole was not high, but that is not unique. Petty larceny is petty larceny and you have a very bad record. I have seriously considered that you need to be deterred from stealing by spending some time in gaol and I have carefully considered that.
Mr Mancini has put to me today that you have responsibilities to a ten year old child. It is a very extremely borderline situation. You have got an appalling record as I have said. With considerable reluctance, I am going to suspend your sentence today, but rest assured that if you come back, you would have to spend some time in gaol.”
The appellant’s submissions and the issues on the appeal
The appellant submits that looked at as a whole the sentence imposed by the Magistrate is manifestly excessive. She submits that the Magistrate did not take into account the following:
1.The appellant’s efforts towards rehabilitation and her success at such efforts. Furthermore, the appellant had the strong support of her mother, and that it was said improved her prospects of rehabilitation.
2.The appellant’s pleas of guilty and her expressions of remorse. In view of her pleas of guilty, the Magistrate must have adopted a higher starting point than six months.
3.The difference between the reasons for her offending in the past – the context of such offending was one of chronic drug abuse – and the reasons for the subject offending – the context of the subject offending was one of poverty or need.
4.The principle of totality.
The appellant submits that if these matters had been taken into account, or properly taken into account, a lesser sentence would have been imposed. The appellant submits that the Magistrate was unduly influenced by the appellant’s criminal record. It was submitted that the sentence imposed by the Magistrate was imposing a fresh penalty for past offences. Furthermore, the appellant submitted that the Magistrate failed to take into account s 11(1)(a)(iv) of the CLSA which provides as follows:
“11 (1) A sentence of imprisonment may only be imposed –
(a) if, in the opinion of the Court –
…
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence;”
The appellant also complained of the order that she perform community service. She submitted that the Magistrate did not indicate that he was proposing to impose a condition requiring the performance of community service and that as a result she was deprived of the opportunity of making submissions on her ability to carry out such work. The appellant submitted that the imposition of a custodial sentence, albeit suspended, and the order for the performance of community service did not result in a balanced sentencing package. She also pointed to the fact that under the order she was required to perform over half the maximum number of hours (ie., 180 hours of a maximum of 320 hours) (s 47(1)(a) CLSA) in half the maximum permissible time (ie., 9 months of a maximum of 18 months) (s 47(1)(c) CLSA). The bond was for the maximum period of time.
In sentencing the appellant, the Magistrate was exercising a judicial discretion. The grounds upon which an appeal court will interfere with the exercise of a discretion are well known (House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504 – 505). The appellant must show that the Magistrate acted upon a wrong principle, or that the Magistrate allowed extraneous or irrelevant matters to guide or affect him, or that the Magistrate mistook the facts or that the Magistrate failed to take into account a material consideration.
This Court may also interfere if, although no specific error is identified, the result upon the facts is so unreasonable or unjust that it may be inferred that a substantial wrong has occurred and there has been a failure to properly exercise the discretion.
I did not understand the appellant to suggest that the Magistrate acted upon a wrong principle. In any event I would reject such a contention. The Magistrate had the power to impose the sentence which he did and the type of matters which he took into account (the appellant’s criminal record, her efforts at rehabilitation, her reasons for committing the offences and her responsibilities to her children) are in no way suggestive of an error of principle. It might be said that the assertion that the Magistrate erred in failing to raise with counsel the possibility of community service is acting upon a wrong principle. However, in the circumstances I do not think that the Magistrate was under an obligation to raise the possibility of community service. That possibility was an obvious one. The pre-sentence report upon which the appellant relied so strongly refers to the possibility of community service and refers to the fact that under a previous Suspended Sentence Bond, the appellant had been required to perform 80 hours of community service.
I think the Magistrate did take into account three of the matters which the appellant identified as matters which the Magistrate did not take into account.
The Magistrate did take into account the appellant’s steps towards rehabilitation. He referred to the submission that the appellant had changed her ways. He said that he did not accept that submission at face value. I think he was entitled to take that approach. The appellant referred to the pre-sentence report. That report is of some assistance to the appellant but it does not contain a statement that rehabilitation has taken place or is assured. Even if it did, the Magistrate is entitled to make his own mind up about those matters having regard to all the material before him including the appellant’s criminal record.
I think that the Magistrate must be taken to have taken into account the appellant’s pleas of guilty even though he does not mention that fact in his sentencing remarks. Nor do I think it should be assumed that the Magistrate overlooked claims of remorse.
The Magistrate did not overlook the assertion that the reason for the offences committed in December 2003 was poverty or need in contrast to her reasons for earlier offending. He refers to it in his sentencing remarks.
The Magistrate was required to consider the principle of totality. He was required to do that in the context of the sentencing package as a whole. That included the amount of community service he was proposing as a condition of the bond. The obligation to perform community service is a penalty in the same way as the imposition of a term of imprisonment, albeit suspended, is a penalty. It was necessary for the Magistrate to consider the overall penalty (Holdsworth v Larcombe (1987) 44 SASR 294).
In my opinion, the Magistrate was correct to describe the appellant’s criminal record as appalling and very bad. She has been a regular offender. She has a large number of convictions including 14 convictions for larceny between 1995 and 2002, three convictions for break and enter building and commit an offence, a number of convictions for possession of a controlled substance and convictions for a number of other offences. Furthermore, as the Magistrate noted, she had received a Suspended Sentence Bond on 13^th August 2002 and the offences committed in December 2003 were committed within six months or so of the Bond expiring. The Magistrate was entitled to view the appellant’s criminal record as a very significant matter.
The appellant acknowledged that her criminal record was a significant matter, but she submitted that the Magistrate placed too much weight on her criminal record. She said that she had in fact received a fresh penalty for past offences. She referred to the decision of the High Court in Veen v The Queen [No 2] (1988) 164 CLR 465. In that case, Mason CJ, Brennan, Dawson and Toohey JJ said (at 477 – 478):
“There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.”

Having regard to the nature of the offences, a sentence of six months imprisonment, albeit suspended, is a substantial penalty. I do not think that it is an inappropriate penalty having regard to all the circumstances including the appellant’s criminal record. However, the obligations to be of good behaviour for the maximum period permitted by law (ie., three years) and to perform over half the maximum period of community service hours are also substantial obligations. In my opinion, the sentencing package as a whole is manifestly excessive. Looking at the matter in terms of the test in House v The King (supra) I think that the Magistrate erred because he did not consider the sentencing package as a whole and/or because he placed excessive weight on the appellant’s criminal record. Having regard to the penalty of a term of imprisonment of six months, albeit suspended, the appropriate period for the bond is 18 months and the appropriate period for community service is 90 hours.
Conclusion
The appeal must be allowed but only for the purpose of reducing the period of the bond from three years to 18 months and reducing the period of community service from 180 hours to 90 hours. I will hear the parties as to the appropriate orders.