BRADY v POLICE - [2022] SASC 114

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
BRADY v POLICE
[2022] SASC 114
Judgment of the Honourable Justice Kimber (ex tempore)
7 October 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
The appellant appeals sentences imposed by a Magistrate on 8 July 2020 for one count of Theft and one count of Breach of Bail.
At the time of sentence, the appellant had a poor record. The appellant had been previously convicted of numerous dishonesty offences and breaches of bail. After identifying a starting point of four months for the Theft and reducing that starting point by 30 per cent for the plea of guilty and a further eight days for time in custody, a sentence of two months, 16 days was imposed. That sentence was made cumulative upon a sentence of five months which had commenced on 21 March 2020.   After identifying a starting point of six months for the Breach of Bail and reducing that starting point by 30 per cent for the plea of guilty, a sentence of four months and one week was imposed and made cumulative on the sentence for the Theft.
The effective total head sentence was 11 months and 23 days, commencing on 21 March 2020. The effective total head sentence was partially suspended by the Magistrate, who ordered the appellant be released after eight months upon entry into a bond of $400 to be of good behaviour for 12 months.
The Notice of Appeal was filed on 29 July 2022 and made more than one complaint of manifest excess.
Held, per Kimber J, dismissing the appeal:
1.      The sentences imposed for the Theft and the Breach of Bail were not manifestly excessive.
2.      There was no error in making the two sentences cumulative.
3.      The application for an extension of time to appeal is refused.
4.      The appellant is ordered to pay costs in the amount of $750.
Criminal Law Consolidation Act 1935 (SA) s 17(1), s 134, referred to.
House v The King (1936) 55 CLR 499; R v Valesic (2018) 132 SASR 250; R v Gray [2004] SASC 218, applied.

BRADY v POLICE
[2022] SASC 114
Magistrates Appeal: Criminal
KIMBER J:
Overview

This is an appeal with respect to sentences imposed on 8 July 2020 by a Magistrate. The sentences imposed were one count of Theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) and one count of Breach of Bail contrary to s 17(1) of the Bail Act 1985 (SA).
For the offence of Theft, the Magistrate identified a starting point of four months. Reductions of 30 per cent for the plea of guilty and eight days for time in custody were given. The result was a sentence of two months and 16 days. For the Breach of Bail, the Magistrate identified a starting point of six months. A reduction of 30 per cent was given for the plea of guilty. The result was a sentence of four months and one week. The sentence for the Theft was made cumulative upon a sentence of five months which had commenced on 21 March 2020 as a result of the suspension of that sentence being revoked before 8 July 2020. The sentence for the breach of bail was made cumulative upon the sentence for the Theft.
The overall result was an effective total head sentence of 11 months and 23 days, commencing on 21 March 2020. The Magistrate partially suspended that sentence, ordering release after eight months upon entry into a $400 bond to be of good behaviour for 12 months.
As will be obvious, the appellant has served the sentences the subject of the appeal. The parties accept that is no bar to the appeal. I can think of no particular reason why it should be a bar and will proceed on the basis it is not, without deciding.
Notice of Appeal
The Notice of Appeal is dated 29 July 2022. It follows that more than two years has passed between the date of sentencing and the filing of the Notice of Appeal. The appellant seeks an extension of time. The extension of time is opposed by the respondent.
I refuse to grant the extension of time and dismiss the appeal. My reasons follow.
The grounds of appeal
The grounds in the Notice of Appeal are as follows:
1.     The sentence for the offence of Theft is manifestly excessive.
2.     The sentence for the offence of Breach of Bail is manifestly excessive.
3.     The combined outcome of the two sentences is manifestly excessive.
Extension of time – principles
It is for the appellant to persuade the Court to exercise the discretion to extend time. In determining whether to exercise discretion, it is necessary to consider the length of the delay, the reasons for the delay and whether the appeal is viable or not. When examining the reasons for the delay, the appellant has an obligation to explain his reasons with frankness and candour. The longer the delay, the more exceptional or substantial the explanation needs to be.
In R v Valesic,[1] the Court referred with approval to the following remarks of Nyland J in R v Gray:[2]
… the proper approach with respect to an extension of time in which to appeal, absent exceptional circumstances, is for the Court to consider the grounds and determine whether they disclose reasons for apprehending that a miscarriage of justice has occurred, substantial grounds on the merits or a question that justifies serious consideration, irrespective of the length of the delay.
[1] R v Valesic (2018) 132 SASR 250, 257.
[2] R v Gray [2004] SASC 218, [20].
The explanation for the delay
The explanation for the delay is set out in a draft affidavit from the solicitor for the appellant. The respondent accepts I should act on the matters set out in the draft affidavit. The explanation for the delay is as follows.
At the time of sentencing on 8 July 2020, the appellant was also charged with separate major indicatable offending (the District Court matter). After the sentences imposed by the Magistrate on 8 July 2020, the appellant retained different solicitors with respect to the District Court matter. That occurred in about September or October 2021. That District Court matter was listed for trial on 7 December 2021 but resolved by way of pleas of guilty and sentencing submissions were remanded until February 2022. In preparing for those sentencing submissions, counsel for the appellant gave attention to the sentences the subject of this appeal. At some point before 11 March 2022, counsel identified matters which might be the subject of an appeal, and on 11 March 2022 a copy of the sentencing remarks of the Magistrate was obtained. As an aside, I mention the appellant advances the appeal as if he is re-sentenced to a lesser sentence, or sentences, the time in custody available to be brought to account with respect to the District Court matters will increase.
I return to the chronology of events. Once the sentencing remarks were obtained, advice was given to the appellant and he gave instructions to appeal. An application for legal aid was made in late March or early April 2022. That application was refused on 5 May 2022.
Due to difficulties in communicating with the appellant in custody, instructions to review the refusal of legal aid were not obtained until June 2022. I have assumed the difficulties just mentioned were not the responsibility of the appellant.
The review was successful and legal aid was granted on 21 July 2022.
Several observations can be made immediately. First, the appellant was represented at the time of sentence. Second, there is no explanation for not taking steps to institute an appeal between the date of sentence and early 2022, a period of more than eighteen months. Third, the delay between receipt of the sentencing remarks on 11 March 2022 and the filing of the Notice of Appeal on 29 July 2022 is about four and a half months. To the extent that delay of about four and a half months was due to the delay in obtaining legal aid, it is the duty of the solicitor representing a person who wishes to apply for legal aid to file a notice within the time prescribed pending the determination of an application for aid.[3]
[3] R v Gray [2004] SASC 218, [22].
It may be that the circumstances within which the appellant has come to file his Notice of Appeal has some features not commonly encountered, but I find the matters advanced do not amount to exceptional circumstances.
The merits
I turn to the merits of the grounds of appeal. The parties have made their submissions in full.
It is helpful to begin with the circumstances of the offences and some aspects of the personal circumstances of the appellant.
The Theft was committed on 31 August 2019. The appellant stole cosmetic items from an unmanned kiosk in the Elizabeth Shopping Centre. In order to access the items, the appellant forced cupboards open with a tool of some sort. The items taken had a total value of approximately $250 and were later found on the appellant. The maximum penalty for the Theft was imprisonment for 10 years.
The Breach of Bail was committed in the following way. On 17 March 2020 the appellant entered into a bail agreement at the Elizabeth Magistrates Court. It was a condition of that agreement he wear an electronic monitoring device. On 20 March 2020 the appellant breached that condition when he cut off his electronic monitoring device at the Largs Bay Railway Station. The maximum penalty for the breach of bail was a fine of $10,000 or imprisonment for two years.
At the time of sentencing the appellant was in his late 40’s or early 50’s. The Magistrate who imposed the suspended sentence of five months which was revoked before 8 July 2020, accurately described the appellant as having lived a life of crime. The appellant’s antecedent history reveals that before the date of sentencing, he had committed offences consistently for almost three decades and had been sentenced to imprisonment on a significant number of occasions. Among the prior offences were numerous dishonesty offences (i.e. - stealing, theft, robbery, receiving and false pretences). The appellant had also breached his bail on numerous occasions. The appellant was not to sentenced again for past offending, but his history informed the extent to which the Magistrate could extend leniency.
During the hearing of the appeal, the appellant and the respondent brought to my attention many past sentences for breaches of bail and theft. In the circumstances of this appeal, it is sufficient to make the following observations about the utility of those past sentences.
First, there is no sentencing standard for theft or breach of bail. It is trite, but important, to observe that no two offenders are ever the same and the circumstances in which offences of Theft and Breach of Bail may be committed vary widely.
Second, while there have been sentences imposed of a significantly lesser duration than the two sentences imposed in this case, there are also examples of sentences of a similar length, or at least approaching a similar length, to the sentences imposed in this case.
Third, intervention on appeal is not justified simply because the result arrived at is markedly different from sentences imposed in other cases. Further, that this Court may have taken a more lenient approach is not to the point.
I turn then to the grounds advanced by the appellant. The three grounds involve a complaint of manifest excess. The appellant seeks to establish the relevant aspects of the sentence were plainly unreasonable or unjust.[4]
[4] House v The King (1936) 55 CLR 499, 505.
As to Ground 1, the Theft was an offence towards the lower range of seriousness. Nonetheless the value of the property was not trifling; it was a calculated offence committed by a person with a long history of showing no regard for the property of others. Given the record of the appellant: the paramount consideration of the protection of the safety of the community had particular significance; there was no basis for leniency; little hope of rehabilitation and an overwhelming need for personal deterrence. In all the circumstances, the sentence was within the range of appropriate sentences. The sentence for Theft was not manifestly excessive.
The Breach of Bail was an offence committed only three days after home detention bail had been granted. The removal of the device was a serious aspect of the offence. The appellant had long shown a consistent disregard for orders of the court. As with the offence of Theft, there was no basis for leniency and personal deterrence had particular importance. In all the circumstances, the sentence imposed was within the range of appropriate sentences. The sentence for Breach of Bail was not manifestly excessive.
As to Ground 3, this appeal is not the occasion to re-state the principles which apply to whether sentences should be cumulative or concurrent and the matters to be considered when sentences are made cumulative upon a sentence already being served. It is sufficient to observe the offences of Theft and Breach of Bail were separate offences committed about six months apart. There was no error in making those two sentences cumulative. Further, that the two sentences imposed were cumulative upon the sentence of five months did not warrant lesser individual sentences that were imposed, nor some degree of concurrency between the two sentences imposed on 8 July 2020.
Conclusion
For the above reasons, the three grounds of appeal are without merit.
I make the following orders:
1.     The application for an extension of time is refused.
2.     The appeal is dismissed.
3.      The appellant will pay costs in the amount of $750.00.