BROWN v Police

[2013] SASC 197

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BROWN v POLICE

[2013] SASC 197

Judgment of The Honourable Justice Kelly

19 December 2013

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES

Appeal against sentence imposed on 29 August 2013 – appellant pleaded guilty to serious criminal trespass, theft and contravening a bail agreement – Magistrate imposed a single head sentence of 14 months after allowing a discount of 25 per cent on account of the appellant’s guilty pleas – sentence was made cumulative upon a District Court sentence of 19 months imprisonment with a non-parole period of six months imposed on 25 July 2013 – Magistrate arrived at a head sentence of 32 months and imposed a non-parole period of 11 months.

Whether the sentence imposed was manifestly excessive because the Magistrate failed to attach sufficient weight to the appellant’s youth, personal circumstances, aboriginality and his good prospects of rehabilitation – whether Magistrate failed to give sufficient consideration to the sentence which had been imposed in the District Court – whether Magistrate erred in incorporating the offence of contravention of a bail agreement into the global penalty imposed pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA).

Held:

(1) The starting point of 18 months imprisonment was lenient.

(2) The Magistrate took into account the appellant’s youth, personal circumstances and aboriginality.

(3) The Magistrate gave sufficient consideration to the District Court sentence.

(4) As a matter of law, there was no impediment to the Magistrate incorporating the offence of contravention of bail into the global penalty imposed.

(5) Apart from noting the sentencing Magistrate’s miscalculation as to the total head sentence the appeal is dismissed.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Delphin (2001) 79 SASR 429, discussed.

BROWN v POLICE
[2013] SASC 197

Magistrates Appeal:   Criminal

KELLY J.

Introduction

1. This is an appeal against sentence imposed in the Port Augusta Magistrates Court. On 27 August 2013 the appellant pleaded guilty to serious criminal trespass, theft and contravening a bail agreement. On 29 August 2013 the sentencing Magistrate, exercising the powers under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“Sentencing Act”) imposed a single head sentence of 14 months imprisonment for the three offences. As the Magistrate allowed a discount of 25 per cent on account of the appellant’s guilty pleas to the three charges, the starting point for the head sentence was therefore approximately 18 months and 20 days. That sentence was made cumulative upon a District Court sentence imposed on 25 July 2013 for a group of offences which had occurred on 3 June 2011 and another group of offences which had occurred on 24 January 2013. Having accumulated the sentences, the sentencing Magistrate arrived at a head sentence of 32 months and then imposed a new non-parole period of 11 months. He backdated the sentence to commence from 24 January 2013 as did the District Court Judge when sentencing the appellant in July 2013.

2. There are two main issues which arise on this appeal. The first is whether the sentence imposed was manifestly excessive because the Magistrate failed to attach sufficient weight to the appellant’s youth, personal circumstances, aboriginality and his good prospects of rehabilitation and further failed to give insufficient consideration to the sentence which had been imposed in the District Court on 25 July 2013. The second issue which arises is whether the sentencing Magistrate erred in finding that the charge of contravening a bail agreement merited a sentence of imprisonment in the sense that the Magistrate exercised the powers of s 18A of the Sentencing Act to impose only one sentence which was a sentence of imprisonment for all three offences including the contravention of the bail agreement.

   Background

3. The sentence the subject of this appeal was imposed for two offences of serious criminal trespass and theft committed by the appellant on 27 May 2012 and for the breach of bail which was committed on 26 July 2012.  The offences of serious criminal trespass and theft were committed sometime between 12.00pm and 4.30pm on the afternoon of 27 May 2012 when the appellant entered an unoccupied residential home in Port Augusta via an unsecured rear patio door and stole approximately $2,000 worth of gold and silver coins from a wardrobe in the master bedroom.  The breach of bail was committed on 26 July 2012 when the appellant was absent from his bail address during curfew hours of 9.00pm to 7.00am.  In the early hours of the morning, namely 1.45am, police went to the bail address and the appellant was absent.  That gave rise to the breach of bail offence.  At the time when the offences of serious criminal trespass and theft were committed on 27 May 2012 the appellant was already on bail in respect of earlier offences of aggravated criminal trespass and aggravated cause serious harm with intent committed at Davenport on 3 June 2011.

4. The offence of serious criminal trespass in a place of residence carries a maximum term of imprisonment of 15 years.  Theft carries a maximum term of imprisonment of 10 years. 

5. The earlier offences, for which the appellant was already serving a sentence at the time when the Magistrate came to sentence him, had been committed in the Davenport community against a background of animosity between two families.  A female occupant of the invaded house was violently assaulted by an intoxicated group which included the appellant.  The appellant was released on bail for those offences on 5 July 2012. 

6. On 25 July 2013 a District Court Judge sitting in Port Augusta sentenced the appellant for the two earlier offences of aggravated criminal trespass and aggravated cause serious harm with intent as well as for a group of four offences of aggravated assault which were committed on 24 January 2013 during the trial of the appellant for the aggravated criminal trespass and aggravated cause serious harm with intent offences.  The four counts of aggravated assault were committed against two members of the jury empanelled to hear and determine the appellant’s guilt of the earlier two offences and two prosecution witnesses, one of whom was in the middle of her evidence at the time she was assaulted. 

7. The sentencing Judge in the District Court imposed a head sentence of 19 months imprisonment with a non-parole period of six months.  Her Honour backdated the commencement of that sentence to 24 January 2013, the date on which the four assaults against the jurors and witnesses occurred.

8. During sentencing proceedings in the Magistrates Court the Magistrate was given a copy of the District Court Judge’s sentencing remarks for the earlier offending. 

   Discussion

9. I should state from the outset that the head sentence arrived at by the sentencing Magistrate was miscalculated as 32 months; the sum total of both head sentences is in fact 33 months.

10. The Full Court in R v Delphin[1] held that “in the ordinary case of a single serious criminal trespass in a place of residence, where the intention upon entry is larceny generally, a penalty for a first offence must be in the order of 20-24 months where a plea of guilty is involved, with serious consideration being given to suspension in the case of a first offender”.[2]   The appellant submitted a departure from the sentencing tariff was warranted in this case by reason of three matters: the appellant’s youth, his aboriginality, and the sentence imposed in the District Court.

    [1] (2001) 79 SASR 429.

    [2]    R v Delphin (2001) 79 SASR 429 at [47].

11. The first and obvious point to be made about that submission is that the Magistrate in adopting a starting point of 18 months and 20 days imprisonment for each of the offences of serious criminal trespass, theft and contravening the bail agreement obviously did depart from the tariff.  It also needs to borne in mind that his Honour was dealing not with a first offence of aggravated criminal trespass but against the background of the two earlier offences of aggravated criminal trespass and aggravated cause serious harm with intent, both of which occurred on 3 June 2011.  In this respect the appellant was not entitled to the leniency which might ordinarily be extended to a first offender.  It also meant that personal deterrence was an important consideration for the sentencing Magistrate.

12. The sentencing Magistrate is an experienced judicial officer particularly in relation to dealing with traditional and urban Aboriginal offenders.  It is obvious that his Honour was well aware that the appellant for most of his young life, certainly from the age of 10, had resided basically between the Pitjantjatjara lands and Davenport north of Port Augusta.  His Honour had the sentencing remarks of the District Court Judge and stated in his remarks that he adopted the background information set out by her Honour.  Unlike the District Court Judge, the Magistrate thus had the full picture of the appellant’s previous offending. 

13. Taking all these considerations into account I consider that the starting point of 18 months for each of the offences for which the Magistrate sentenced the appellant was lenient.  For these reasons I do not consider that the complaint that the Magistrate failed to take into account the appellant’s youth, personal circumstances and aboriginality has any substance. 

14. The appellant’s second complaint was that the Magistrate failed to give sufficient consideration to the sentence imposed by the District Court Judge on 25 July 2013.  The appellant submitted that in effectively almost doubling the non-parole period from six months to 11 months the Magistrate undermined the purpose and effect of the District Court sentence. 

15. The first point to be made about this complaint is that unfortunately the District Court Judge did not have the complete picture of the appellant’s antecedent history before her when she sentenced him in July 2013.  Although affidavits filed on this appeal explain why it was that her Honour was not informed of the appellant’s subsequent offending in May and July 2012, the fact is that because of that failure to inform her Honour, the District Court Judge sentenced the appellant unaware of the fact that he had committed a further offence of aggravated criminal trespass and theft while on bail for the two offences of aggravated criminal trespass and aggravated cause serious harm with intent for which she was imposing sentence.  The fact that the further offending occurred whilst the appellant was on bail for the two earlier offences was also an aggravating circumstance. 

16. In these circumstances it seems to me that the Magistrate was faced with a very difficult task of imposing a sentence which reflected the gravity of the appellant’s offending and also which reflected all of the circumstances of the appellant’s youth, background and aboriginality. 

17. I observe in passing that the offences which the District Court Judge dealt with were in themselves very serious.  Even though her Honour accepted that the appellant’s plea of guilty was entered on the basis of a common purpose to assault the occupants of the house at Davenport, nevertheless the injuries suffered by the victim were extremely serious and life threatening and the appellant played an active role in entering the house and kicking the female victim.

18. The four offences of aggravated assault which occurred in January 2013 during the trial of the appellant on the charge of aggravated criminal trespass and aggravated cause serious harm were committed against jurors empanelled to hear the trial and two prosecution witnesses.  The appellant threatened the two jurors “I will kick your fucking heads in”.  The threats to the two witnesses were also very serious.  The appellant threatened “I’ll stab you soon” or “I’ll be stabbing you soon” to both witnesses after they left the building during the lunch break and after one of the witnesses had given evidence.  The District Court Judge saw fit for all four offences involving the jurors and the witnesses to impose a sentence of four weeks in addition to the 18 months imprisonment which she imposed for the offences of aggravated criminal trespass and aggravated cause serious harm with intent.  The District Court Judge’s total sentence of 19 months imprisonment with a non-parole period of six months might be thought to be remarkably lenient in all of the circumstances. 

19. I make these observations not because the District Court Judge’s sentence is the subject of this appeal but in the context of evaluating the submission that the Magistrate did not take into account or give sufficient consideration to the sentence imposed by her Honour. 

20. In summary, it was undesirable that the District Court Judge who sentenced the appellant in July was not in a position to sentence him for all of the offences which he had committed, because she was not informed about the subsequent offending and therefore the sentence imposed in July 2013 was imposed in circumstances which did not reflect the complete picture of the appellant’s offending.  Finally, even without that knowledge the sentence imposed by the District Court Judge for six very serious offences was very low.  For these reasons I do not consider that there is any substance in this ground of appeal either. 

21. I shall deal briefly with the complaint that the Magistrate erred by exercising the powers under s 18A of the Sentencing Act to impose one sentence for each of the offences of criminal trespass, theft and breach bail. The appellant submitted that the discretion miscarried with respect to the charge of breach bail because the offence of breach bail was a trifling example of the offence and should not have warranted imprisonment at all.

22. I was never told why the police went to the bailed address of the appellant in the early hours of the morning on 26 July 2012 nor do I have any information about the circumstances in which the appellant decided to go to the police station himself later that day.  At the time when the appellant committed this offence he was on bail for two serious offences, one of them the most serious offence of violence in relation to the victim at Davenport.  In these circumstances I do not agree with the appellant’s submission that the breach of bail was trifling. 

23. Even if it was, the offence of breach bail is an offence which attracts a maximum penalty of imprisonment for 10 years or a fine of $10,000. As a matter of law there was no impediment to the Magistrate exercising the powers available to him under s 18A of the Sentencing Act and proceeding in the manner he did. Given that his Honour adopted a starting point of 18 months for all three offences, when that starting point for a second offence of aggravated criminal trespass standing alone would be merciful, I do not accept that any error has been disclosed in the approach taken by his Honour.

24. As I have said it was unfortunate that the Magistrate was left to deal with the tail end of the appellant’s offending, however, the sentence imposed by his Honour was merciful and the non-parole period which he fixed was in all the circumstances a low one. 

25. Apart from noting the miscalculation as to the total head sentence which should read 33 months the appeal is dismissed.