Brett Corey Wilson v SA Police No. SCGRG 93/1107 Judgment No. 4071 Number of Pages 5 Offences against Property

[1993] SASC 4071

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Offences against property - breaking, entering and larceny - Using stolen vehicles - "ram raid" - separate offence of driving whilst disqualified - three separate and distinct occasions of offending - Magistrate imposed cumulative sentences of imprisonment with respect to all offences - appeal against sentence - youthful offender - prospects of rehabilitation - individual sentences appropriate - orders that sentences for these committed on same occasion be served cumulatively in accordance with the totality principle - total sentence manifestly excessive - appeal allowed.
R v Wilton (1981) 28 SASR 362; R v Morse (1979) 23 SASR 98 and R v Dube; R v Knowles (1987) 46 SASR 118, applied. R v Faulkner (1972) 56 CrAppR 594, discussed.

HRNG ADELAIDE, 20 July 1993 #DATE 30:7:1993
Counsel for appellant:     Mr G D Mcgee
Solicitors for appellant:    Gregory D Mcgee
Counsel for respondent:     Ms I Y Baumanis
Solicitors for respondent: Crown Solicitor for
   South Australia

ORDER
Appeal allowed.

JUDGE1 MULLIGHAN J This is an appeal against the sentences of imprisonment imposed by a learned Special Magistrate sitting in the Magistrates Court (Criminal Division) at Para Districts on 29th March 1993. 2. The appellant pleaded guilty to seven offences which occurred during three separate episodes of criminal conduct on his part. On 26th September 1991 the appellant, together with other men, broke and entered premises at Elizabeth East and stole leather goods and a motor cycle helmet to the value of $1,557.49, which were subsequently sold. Shortly beforehand they had obtained two motor vehicles, one to use to break into the premises and the other to use to get away from the premises. They broke into the premises by ramming one of the vehicles through the double front doors of the premises. Damage to the premises amounted to about $10,000 and damage to two motor cycles amounted to $1,500. Damage to the two motor vehicles amounted to nearly $7,200. These offences constituted breaches of bonds entered into by the appellant when sentences of imprisonment were imposed but suspended upon his conviction of earlier offences of breaking, entering and felony, illegal use of a motor vehicle and assault. Those sentences were imprisonment for nine months, six months and six months respectively. The learned Special Magistrate revoked the suspension of those sentences and ordered that they be carried into effect. Each of the offences was committed on a separate occasion and the learned Special Magistrate ordered that they be served cumulatively making a total period of twenty-one months. On each of the two charges of illegal use committed before the "ram raid" in September 1991 the learned Special Magistrate sentenced the appellant to imprisonment of six months and on the charge of breaking, entering and larceny to imprisonment for fifteen months. In addition to these sentences, he ordered the appellant to pay compensation of $1,723 with respect to one of the offences of illegal use and compensation of $4,352 with respect to the offence of breaking, entering and larceny. 3. On 19th October 1992 at Smithfield the appellant drove a motor vehicle on a road whilst he was disqualified from holding or obtaining a licence to drive a motor vehicle having earlier been convicted of driving a motor vehicle at a speed dangerous to the public. The order of disqualification had been made on 8th August 1991 and was for a period of eighteen months commencing on 1st January 1992. On 4th March 1992 another order was made disqualifying him from holding or obtaining such a licence upon his being convicted of driving a motor vehicle in a manner dangerous to the public. Police officers saw the appellant driving a motor vehicle on 19th October 1992 and spoke to him. His explanation was that he thought the periods of disqualification expired in September 1992. The sentence imposed by the learned Special Magistrate was that the appellant be imprisoned for three months. 4. On 12th November 1992 the appellant, in company with another man, broke and entered shop premises at Angaston and stole cassette recorders, television sets and portable stereo units to the value of about $10,000. Earlier they had obtained a motor vehicle for use in the theft. They were apprehended by police soon afterwards. The goods were recovered but damage amounting to $4,843.75 had been caused to the vehicle. The learned Special Magistrate sentenced the appellant to imprisonment for twenty months on the charge of breaking, entering and felony and ten months on the charge of illegal use. He was ordered to pay one half of the damage to the vehicle by way of compensation. 5. The learned Special Magistrate ordered that all of these sentences of imprisonment be served cumulatively with the consequence that the total head sentence is six years and three months. He fixed a non-parole period of four years. The sole ground of appeal is that the total sentence is manifestly excessive. 6. The appellant has a number of previous convictions in addition to those which relate to the suspended sentences and the driving offences which I have mentioned, including convictions for assault, carrying an offensive weapon, illegal use of a motor vehicle and for some traffic offences. 7. The appellant is aged twenty-one years. All of his offending occurred over a period of about eighteen months. He had never been in any trouble with the law before he committed his first offence on 25th July 1991 when he was aged nineteen years. After leaving school at the completion of year 11, he undertook a course to qualify him as an apprentice electrician but left the course after two months as he had found employment. He was in almost continuous employment, although in various jobs, until December 1989 when he sustained a serious back injury in the course of his employment and he has not since had employment. For the next year he received compensation payments. When his recovery was complete, he regarded himself as unemployable having experienced a negative attitude from various employers to whom he applied for work, as they considered him a risk due to his previous injury. He commenced offending after unsuccessful attempts to obtain employment. It was submitted to the learned Special Magistrate that the appellant's offending occurred during a phase of his life when he was frustrated and unsettled due to his injury and lack of employment. He has not committed any offences since he was apprehended on 12th November 1992. He has a stable relationship with a young woman and they have had a child who was born a few weeks before he was sentenced. He has sought employment which was available if he did not have to serve a sentence. It was submitted to the learned Special Magistrate that the appellant had come to realize that he had to reform his life and he had made substantial progress towards rehabilitation. 8. The learned Special Magistrate took a very serious view of the appellant's offending and was justified in doing so. He accepted that the breaking, entering and larceny committed on 26th September 1991 had been committed for financial gain and during the currency of the bonds. His pleas of guilty were entered shortly before he was sentenced. Earlier he had maintained pleas of not guilty even though he had otherwise co-operated with the police. Apparently he had been informed by his legal adviser that he may have some technical defence to various charges but upon further information becoming available, such perceived defence was no longer thought to be available. It was not explained what the defence might have been, but these matters were advanced as the reason for his late plea. 9. The file for the Magistrates Court available on this appeal does not appear to contain a full transcript of the remarks of the learned Special Magistrate on penalty. However, it is possible to discern from the available transcript that the learned Special Magistrate did have regard to the age and prospects of rehabilitation of the appellant and took the view that offences of this nature are commonly committed by persons of a similar age and that general deterrence had to assume prominence in fixing the head sentence. However, he regarded the appellant's age as of greater significance in fixing the non-parole period. The learned Special Magistrate also took into account the appellant's repeated offending even though leniency had previously been extended to him. He appears to have accepted that the appellant had made progress towards rehabilitation. 10. In considering the ground of appeal, it is necessary to determine whether the learned Special Magistrate erred in the execise of the sentencing discretion. There may not be interference with the sentence merely because the judge on appeal would have imposed a different sentence: The Queen v Wilton (1981) 28 SASR 362. However, even if no particular error in the exercise of the discretion is apparent, the sentence may be varied if it is manifestly excessive having regard to all relevant matters: The Queen v Morse
(1979) 23 SASR 98. 11. I think it is an error to reject youth as a relevant consideration with respect to the head sentences merely because crimes of illegal use of motor vehicles and breaking and entering and stealing are frequently committed by young people. However, I do not think there can be any valid criticisms of any of the individual sentences imposed upon the appellant. It was in accordance with principle for the learned Special Magistrate to increase the head sentences for each subsequent offences: R v Dube; R v Knowles (1987) 46 SASR 118 at p 124. Given the past record of the appellant and his persistent offending, each of the individual sentences, when considered alone, appears moderate, particularly the sentences for illegal use and breaking, entering and larceny on 26th September 1991 when the "ram raid" occurred. 12. The real issue on this appeal is whether the order that all of the sentences be served cumulatively has the effect of the total sentence being manifestly excessive. As Lord Parker LCJ said in R v Faulkner (1972) 56 Cr App R 594 at p 596:- "At the end of the day, as one always must, one looks at totality and asks whether it was too much." 13. There can be no valid complaint about the order that the earlier sentences which had been suspended and which total twenty-one months should be served cumulatively. Similarly, there can be no complaint about the order that the sentences imposed by the learned Special Magistrate should be served cumulatively upon those sentences. Furthermore, the learned Special Magistrate was undoubtedly correct in ordering that the sentences which he imposed for each of the three occasions of offending should be served cumulatively. All of these episodes of offending were separate and distinct and cumulative sentences are appropriate. However, I think a total head sentence of four years and four months for these three episodes of offending is manifestly excessive in view of all of the circumstances. It was open to the learned Special Magistrate to order that the sentences imposed for the two offences of illegal use of motor vehicles committed on or about 26th September 1991 be served concurrently with the sentence imposed for the offence of breaking, entering and stealing committed on that occasion. Whilst the offences were separate and distinct, they all occurred during the one course of criminal conduct. The same may be said of the offences which occurred on 19th October 1992. The illegal use of the motor vehicle occurred during the course of the offence of breaking, entering and stealing. If the sentences for the offences which occurred on the same occasion are to be served concurrently as between themselves but cumulatively upon the other sentences, the total head sentence would be reduced by one year and ten months, leaving a total head sentence of four years and five months. Having regard to the appellant's age, prospects of rehabilitation, the circumstances which led him to commence offending and the total period of his criminal conduct, such a total sentence would adequately reflect the totality of the criminality involved: R v Dube; R v Knowles (supra) at p 124. 14. The non-parole period should be fixed having regard to the desirability of encouraging the appellant's rehabilitation, a view which seems to have been adopted by the learned Special Magistrate. He will still be a young man when he is discharged from prison and his rehabilitation is likely to be promoted by his serving a significant part of the sentence at liberty in the community under strict conditions of parole. 15. In my view, the sentences imposed are manifestly excessive. I allow the appeal and quash the orders that the sentences imposed for the offences committed on or about 25th September 1992 be served cumulatively. In lieu thereof, I order that they be served, concurrently as between themselves. I quash the order that the two sentences for the offences committed on 19th October 1992 be served cumulatively and, in lieu thereof, I order that they be served concurrently as between themselves. I set aside the non-parole period and fix a new non-parole period of two years and eight months which is to commence on 29th March 1993. In all other respects, the sentences and orders of the learned Special Magistrate are confirmed.