Brown v Police No. Scgrg-98-899 Judgment No. S6864

[1998] SASC 6864

BROWN  v  POLICE
[1998] SASC 6864

Magistrates Appeal

Perry J (Ex tempore)

1. The appellant appeals against the sentences imposed upon him in the Magistrates Court sitting at Mount Gambier on admitted multiple offences, some of which were committed while the appellant was serving a term of imprisonment, and others soon after his release on parole.  The learned sentencing magistrate imposed cumulative prison terms totalling 43 months.  The unexpired balance of the term of imprisonment which he was serving when released on parole was a further 16 months and 15 days, with the result that the total head sentence became 59 months and 15 days.  The learned sentencing magistrate set a non-parole period of 3 years and 9 months.  It is from that sentence that the appeal is brought. 

2. In his Notice of Appeal the appellant complains that the learned sentencing magistrate erred in not paying sufficient regard to the fact that the offending occurred within a very short space of time; in not having sufficient regard to the principle of totality; in placing too much weight on the appellant's criminal history; in failing to give sufficient weight to the appellant's youth; and in fixing an excessively long non-parole period. 

3. The appellant is aged 20 years.  He has accumulated what can only be described as a depressing record of prior convictions, dating back to the age of 14 years.  His previous offending includes illegal use, illegal interference, a number of property damage matters, larceny, unlawfully on premises, break and enter, unlawful possession, false pretences, receiving, robbery in company and traffic offences including driving whilst disqualified.  He has been released on bonds, in some instances breaching them.

4. He has breached bail conditions and he has committed offences while on parole.  A licence disqualification for 12 months, breach of which was one of the offences now in question, was imposed on 1 July 1997 in the Adelaide Magistrates Court in connection with illegal use charges.  It is a sobering thought that since about the age of 14 the longest period the appellant has been outside of an institution was said to be about 4 months, between April and August in 1996. 

5. The learned sentencing magistrate had the benefit of a detailed report from a clinical psychologist, which although dated about a year before the sentences now under appeal were imposed, gives a sad profile of a young man who has never been able to break away from a life of crime.   The psychologist diagnosed him as having an antisocial personality disorder.  The psychologist concludes that the appellant:

   “... has had a long history of offending behaviour with many previous efforts of rehabilitation coming to an unsatisfactory end.  His prognosis for successful rehabilitation must obviously be a guarded one.”

6. Two of the offences now in question were committed while the appellant was in custody earlier this year.  He broke windows in the gaol. While a conviction was recorded, no other penalty was imposed.

7. The other offences, however, were committed soon after his release from gaol on 26 April 1998.  Immediately on his release he committed offences of illegal use and unlawful damage to a vehicle and gates the property of a local motor car dealer in Mount Gambier.

8. On the following day he illegally interfered with a coach and stole two suitcases belonging to tourists which were locked in the coach overnight.  All of the goods, with the exception of one item of clothing, were recovered soon afterwards.

9. Then on the next day, that is on 28 April, there was an offence of theft from a local clothing retailer of some track pants. Two days later he illegally used a motor vehicle and drove it whilst disqualified, ending up in a collision with another vehicle.

10. There was a five day break between offences, the last of which was committed on  6 May 1998 when he was found unlawfully on premises at Mount Gambier.  Bail was refused at that stage and he was held in custody until sentenced on 4 June 1998.  The learned sentencing magistrate gave credit for the short period intervening. 

11. Mr Vadasz, who appeared for the appellant on hearing of the appeal, has put everything which could be said in favour of his client.  This is a tragic case of a young man who has lived a virtually institutionalised life since an early age.  Mr Vadasz emphasised that on release, immediately prior to committing the offence which is now under appeal, the appellant received very little help in re-establishing himself.  He was given a small amount of money and an instruction to go to OARS, but apart from that was more or less left to fend for himself.

12. Apart from that aspect of the matter Mr Vadasz submitted that the individual sentences making up the sentencing package of 43 months were unduly severe.  While it is true that more perhaps might have been done for the appellant on his release, in my opinion this cannot take the appellant very far in explaining or ameliorating the seriousness of the offences which he set about committing. 

13. As for the individual sentences, in my opinion they were all within reasonable bounds and have not been shown to be manifestly excessive, with two exceptions.

14. The learned sentencing magistrate imposed a sentence of four months imprisonment for the larceny of the track pants, and separately and cumulatively upon the other sentences, four months imprisonment for being unlawfully on premises.  In my opinion, despite the seriousness of the overall offending, those two individual offences did not warrant such comparatively lengthy terms of imprisonment.  In my opinion those two sentences were manifestly excessive; they should each be reduced by three months.  But there is no warrant for any other interference with the sentencing package. 

15. It follows that the 43 months imposed on the spate of offending which occurred after the appellant had been released from gaol should be reduced by 6 months to 37 months.  The total head sentence will reduce from 59 months and 15 days to 53 months and 15 days.  Against that I would set a new non-parole period of 39 months.

16. I would allow the appeal for the purpose of making those changes.

17. The other orders and sentences pronounced by the learned sentencing magistrate will remain in full force and effect.