Bowie v Police No. Sccrm-03-140

[2003] SASC 72

BOWIE  v  POLICE

[2003] SASC 72

Magistrates Appeal

1. DUGGAN J.         The appellant pleaded not guilty to an offence of larceny alleged to have been committed at Noarlunga on 21 March 2002.  The offence involved the larceny of a set of vehicle brake pads from a shop.  The appellant was found guilty of the offence after a summary trial and sentenced to imprisonment for 21 days.

2. The offence breached the conditions of a bond to be of good behaviour entered into by the appellant on 18 March 2002.  The bond was estreated.  A sentence of imprisonment for 15 months which was suspended when the appellant entered into the bond, was activated.  The learned magistrate directed that the sentence of 21 days for the larceny offence be served concurrently with the sentence of imprisonment for 15 months.  He imposed a non-parole period of nine months.

3. The appellant has appealed against sentence.  The main ground of appeal complains that the magistrate erred in refusing to allow the appellant’s counsel to place before the court material which would establish that the appellant had provided the police with important information in relation to an alleged murder.  It was argued on appeal that this circumstance should have been considered by the court and that a reduction in the term of the suspended sentence should have followed in consequence of it.

4. It is not in dispute that in the latter part of 2002, after the appellant had been reported for the larceny offence but before she was sentenced for it, the appellant provided vital information to the police about an alleged murder.  There is no suggestion that she was involved in the crime herself.  However, a report by the police which was tendered at the hearing of the appeal indicates that she gave a detailed statement to the police about the matter and assisted in various ways with the investigation.  She was instrumental in the police obtaining evidence against the suspect.  Information she gave to the police led to the arrest of the suspect.  The assistance which she gave involved her in potential danger.  She will be a major witness at the forthcoming trial.

5. After the appellant had pleaded guilty to the charges before the magistrate, her counsel applied for an adjournment so that a report could be obtained in relation to her role as an informer in the murder investigation.  The magistrate was advised that the appellant had assisted the police in the murder investigation and that her assistance had resulted in the arrest of a suspect.  However, the magistrate refused the application on the ground that the matters referred to were not related to the matter before the court.  Submissions on penalty were then made and the appellant was sentenced.

6. The notice of appeal against sentence was filed a few days late, but at the hearing of the appeal an extension of time within which to appeal was granted with the consent of the respondent.

7. Mr Love, for the appellant, argued that the learned magistrate erred in refusing to permit evidence of the appellant’s assistance to the police to be led.  He did not suggest that the magistrate should have refrained from revoking the suspension of the previous sentence.  However, he submitted that the evidence was relevant to the exercise of the court’s discretion to reduce the term of the suspended sentence.  This discretion is provided for in the Criminal Law (Sentencing) Act 1988 (the Act) s 58(4)(a) which states:

   “Where a court revokes the suspension of a sentence of imprisonment, the court –

   (a)may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence.”

8. According to the submission, the assistance given by the appellant to the police was a special circumstance which justified a reduction in the sentence previously imposed but suspended.  Mr Prendergast, for the respondent, submitted that a reduction was not available because the appellant pleaded not guilty to the shoplifting offence which constituted the breach of the bond and did not exhibit any remorse.

9. The circumstances in which police informers might receive a reduction in sentence were considered at some length by Wells J in R v Golding (1980) 24 SASR 161, a decision which has been followed by courts in other States. As Wells J pointed out in Golding, information by informers is frequently given after arrest.  Furthermore, leniency may follow irrespective of whether the information is connected with the matter in which the defendant has been convicted or in some matter which is associated with that offence: Golding at 172: see also R v Many (1990) 51 A Crim R 54.

10. Furthermore, although it might be relevant to acknowledge that information was given out of genuine remorse, contrition is not a necessary pre-requisite for a reduction in penalty.  I respectfully agree with the observations of Hunt and Badgery-Parker JJ in R v Cartwright (1989) 17 NSWLR 243 at 252:

    “It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information.

    In order to ensure that such encouragement is given, the appropriate reward for providing assistance should be granted whatever the offender’s motive may have been in giving it, be it genuine remorse (or contrition) or simply self-interest.  What is to be encouraged is a full and frank co-operation on the part of the offender, whatever be his motive.  The extent of the discount will depend to a large extent upon the willingness with which the disclosure is made.  The offender will not receive any discount at all where he tailors his disclosure so as to reveal only the information which he knows is already in the possession of the authorities.  The discount will rarely be substantial unless the offender discloses everything which he knows.  To this extent, the inquiry is into the subjective nature of the offender’s co-operation.  If, of course, the motive with which the information is given is one of genuine remorse or contrition on the part of the offender, that is a circumstance which may well warrant even greater leniency being extended to him, but that is because of normal sentencing principles and practice.  The contrition is not a necessary ingredient which must be shown in order to obtain the discount for giving assistance to the authorities.”

11. It follows from this statement of principle that, particularly when information is given about criminal activity unrelated to the offence charged, the reduction may be available although the defendant pleaded not guilty to the offence charged.  In Cartwright’s case the appellant was given a substantial discount in sentence despite the fact that he did not plead guilty to the charge.

12. It follows from what I have said that, in my view, the appellant’s assistance to the police in this case comes within the category of assistance which, ordinarily, would be relevant to the sentencing process.  The question remains whether it is also relevant to the exercise of the discretion to reduce the suspended sentence pursuant to s 58(4)(a) of the Act.  In order to give rise to the exercise of the discretion the provision of the information would have to constitute a “special circumstance” within the meaning of the section.

13. In Norman v Lovegrove (1986) 40 SASR 266 at 272 this court accepted a submission that s 9(6) of the Offenders Probation Act 1913 which was in terms similar to s 58(4), directed attention to matters not necessarily related to the commission of the offence which constitutes the breach of bond.

14. In my view the circumstances surrounding the giving of assistance in the present case are exceptional and warrant the description of “special circumstances” justifying a reduction of the term.  The information was given in the month leading up to the sentencing of the appellant.  It was in relation to a serious crime and resulted in the suspect being arrested.  The appellant is prepared to give evidence at the trial.  She placed herself in a position of potential danger by actively acquiring further information for the police officers.  In my view, the learned magistrate erred in refusing to have regard to these circumstances when asked to exercise the discretion pursuant to s 58(4)(a).

15. I take the view that this was a proper case for the exercise of the discretion to reduce the term of the suspended sentence.

16. The appeal will be allowed and the orders of the magistrate will be set aside. In lieu thereof the original head sentence will be reduced to ten months. Pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 I direct that the appellant serve a period of imprisonment for five months to commence on 14 January 2003 and I suspend the remainder of the sentence on condition that the appellant enter into a recognizance in the sum of $200 to be of good behaviour for a period of five months from the date of her release.

17. The sentence of imprisonment for 21 days for the offence of larceny committed on 21 March 2002 will be served concurrently with the sentence of imprisonment for five months which is to be served.