Boyd v Police No. Scgrg-98-187 Judgment No. S6606

[1998] SASC 6606

BOYD  v  POLICE

Magistrates Appeal

Bleby J

This is an appeal against sentence. The appellant pleaded guilty on 2 February 1998 to one count of unlawful possession contrary to s41 of the Summary Offences Act 1953. On 13 August 1997 he was found to have in his possession the property concerned, which was a motor vehicle, being property which either at the time of such possession or at a subsequent time before the making of the complaint, was reasonably suspected of having been stolen or obtained by unlawful means.

The circumstances in brief were that the appellant went to Melbourne in August of 1996 for a holiday.  He there met a longstanding friend of his from school days, Mr Doug Joseski.  He was the owner of a 1978 brown Jaguar coupe, a vehicle which was registered in Victoria.  Mr Joseski apparently said that he was in financial trouble and the appellant agreed to help him out.  Joseski and the appellant conspired with each other for the appellant to remove the car from a designated car park in Melbourne and for the appellant then to drive it to Adelaide, which he did.  He was given a spare key to the car and executed his part of the plan.  Joseski then subsequently reported the vehicle as having been stolen and made a claim on his insurance company for a total loss, a claim of something of the order of $14,750.  He was paid on that claim. 

The arrangement that was made with the appellant was that the appellant could strip the car and sell the parts for his own benefit.  The appellant brought the car to Adelaide.  He stored it in a garage at an aunt’s house at Gawler.  That arrangement came to an end and he had to move it.  He moved it to his then place of employment, which was a crash repair premises at Willaston, north of Gawler.  There it stayed, unused, and in its original condition, until police made enquiries almost one year later, that is almost one year after he brought it to Adelaide. 

The appellant was questioned and cooperated fully with the police.  He made full and frank admissions.  He claimed to the police and through his counsel in the Magistrates Court that he did not know how to go about stripping the car and selling the parts.  The car merely sat there unused for 12 months.  The appellant is now aged 32.  He was aged 30 at the time when he took possession of the car.  As a teenager his parents moved from Melbourne to Renmark, and after leaving school and doing some casual work in the Riverland he came to Adelaide where he took up employment as a panel beater/ spray painter.  He has in recent years been consistently employed and appears to work long hours.  He has been married to his present wife for something like three years.  He supports his wife and two children of that marriage and one child of a previous relationship.  For part of his marriage he has also been supporting two older sons from an earlier marriage.  That caused a strain on the marriage.  There was a reconciliation after six months separation just before his apprehension for this offence.  It appears that he and his wife are now trying to reconstruct their lives and their finances, and with the wife’s part-time earnings were in the course of arranging finance for the purchase of a home. 

He has prior convictions for minor traffic offences and possession of cannabis but the learned magistrate regarded as significant convictions for larceny in 1984, when he was fined a sum of $50 and for receiving in 1986, for which he was fined the sum of $400.  Both of those offences, I understand, occurred in the Riverland before he came to Adelaide.  The latest of those convictions was 10 years before this arrangement was made in Melbourne.  There has been no conviction for any offences committed after August of 1996.  This offence was plainly an act of stupidity.  He did it supposedly to help his friend.  As it turns out he gained nothing for it and the property was fully recovered. 

The learned magistrate in his sentencing remarks said that he considered it was one of the most serious unlawful possessions that is likely to come before a court of summary jurisdiction principally, he said, because of the value of the goods, and the manner in which the appellant came into possession of the goods. 

He also said further on in his sentencing remarks that the matter was in his view sufficiently serious to warrant, “given that it comes on a history of dishonesty offences”, an immediate sentence of imprisonment.  The only dishonesty offences to which he could have been referring were the two to which I referred earlier for which he was convicted in 1984 and 1986. 

The learned magistrate was plainly impressed by the history of the dishonesty offences.  After giving credit for his plea of guilty he convicted the appellant and imposed a penalty of imprisonment for a period of two months.  He did not consider that there existed good reason for suspending the sentence.  Since then the appellant has been released on bail pending his appeal to this court. 

The maximum penalty for the offence with which the appellant was charged is a period of imprisonment for two years or a fine of $8000.  The grounds of appeal to this court allege that the sentence was in all the circumstances manifestly excessive, and it is argued that the learned magistrate should have exercised his discretion to suspend the sentence. 

In my opinion the exercise of the learned magistrate’s sentencing discretion miscarried in two respects: first, in the learned magistrate’s assessment of the seriousness of the offence.  It was a valuable item of which he had possession.  He was, however, only charged with unlawful possession.  He was not charged with conspiracy to defraud.  In this State such an offence would carry a maximum penalty of seven years imprisonment.  He was the secondary player in the scheme and he participated with the misguided intention of helping out a friend.  It appears that he did not enter the scheme with any immediate or dominant purpose of realising some gain.  Effective disposal of the car or its parts seemed to be beyond him.  In that sense, therefore, although it was a valuable item, there were a number of factors relating to the offence which, whilst still serious, would make it difficult to be described as perhaps the most serious that could come before the court. 

Secondly, substantial prominence was given by the learned magistrate to his antecedent offending.  That appears to have been of a relatively minor nature attracting only a fine in each case and, of course, much has happened in the appellant’s life since then.  He has changed his place of residence from the Riverland to Adelaide.  He has been in secure employment for some time.  He is married with substantial responsibilities, his employment has become constant, and he appears to be diligent at it.  This, it seems, was an isolated event. 

Since all that occurred evidence was placed before me on the hearing today that his co‑offender has been tried and found guilty of an offence in Victoria arising out of the same conduct, and for that he has had imposed upon him a four month gaol sentence suspended for a period of 24 months on the condition presumably that he enters a bond to be of good behaviour for that period.  He was also ordered to pay the sum of $14,750 in restitution. 

Mr Rice, for the appellant, relied understandably on the justified sense of grievance that the appellant would sustain if the present custodial sentence were to remain, given the fact that his colleague in Victoria had merely sustained a suspended sentence, and given the fact also that the appellant in this case had co-operated fully with the Victorian police, and in fact had given evidence in the case in Victoria which appears to have largely resulted in the conviction of the other party.  The principle of parity, particularly in respect of co‑offenders, has recently been considered by the High Court in the case of Postiglione v R (1997) 145 ALR 408. The principle is reasonably clear and it can be followed through a line of a number of cases. Particularly as between co-offenders it stipulates that there should not be such disparity as to give rise to a justifiable sense of grievance.

The difference between that case and this is that Joseski had apparently no prior convictions, and of course the magistrate in this case relied heavily on the appellant’s prior convictions.  I do not consider, however, in the circumstances of this case that those prior convictions are sufficiently important or proximate to justify a custodial sentence, even leaving aside the events which have recently occurred in Victoria.  I have already identified two grounds on which I think the magistrate may have erred.  The application of the parity principle in these circumstances seems, to my mind, merely to confirm the justice of what I propose. 

I would not want to underestimate the seriousness of the offence.  It warranted a sentence of imprisonment, but the appellant had demonstrated contrition and an ability to live as a responsible member of society.  He was entitled to the opportunity to demonstrate that this was an uncharacteristic aberration.  In my opinion the sentence was a correct sentence, but it should have been suspended. 

Submissions were placed before me that the magistrate also erred in failing to give warning that he was contemplating imposing an immediate custodial sentence.  Mr Rice referred me to the case of Parker v DPP (1992) 28 NSWLR 282, and sought to rely on a principle that where a magistrate contemplated an immediate custodial sentence and it was not immediately obvious to those present that that would be the inevitable result, he had an obligation to raise it.

There may be some circumstances where such a failure does amount to a miscarriage of justice.  The circumstances of Parker’s case were somewhat different and involved a different hierarchy of appeals and a different set of circusmtances which faced the sentencing judge in the District Court, and counsel who were then appearing for Parker and for the Director of Public Prosecutions. 

Procedural fairness in a given case is very much dependent upon an assessment of all the circumstances.  I am not sure that a failure to observe what may be good sentencing practice can be elevated to a breach of procedural fairness in this case, or indeed in every case.  I need not decide the question in this case but I cannot accept that there is a universal rule which requires the foreshadowing of custodial sentences in every case where a sentencing judge or magistrate may be contemplating that.  There are other reasons why in my opinion the appeal should be allowed. 

I propose therefore to allow the appeal and to direct that the sentence imposed by the magistrate 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. 

The orders of the court will therefore be:

1. Appeal allowed;

2. Direct that the sentence imposed by the learned magistrate 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;

3. The conditions of the bond are that he is of good behaviour and that he complies with the conditions of the bond; that he be under the supervision of a probation officer for a period of 12 months and obey the lawful directions given to him by the probation officer, and that he reports within two working days of having signed the bond at the offices of the Department of Correctional Services, which will be advised to him and placed in the conditions of the bond.

4. The respondent is to pay the appellant’s costs of the appeal fixed at $150.