Browne v Police No. Scgrg-97-1412 Judgment No. S6449

[1997] SASC 6449

BROWNE  v  POLICE

Perry J   (ex tempore)

The appellant appeals against the penalties imposed on him following his plea of guilty in the Magistrates Court sitting at Berri to a number of counts of larceny, breaking and entering and unlawful possession.  In fact, he pleaded guilty to five counts of simple larceny, three counts of unlawful possession and one count of breaking and entering and larceny.

The last-mentioned count related to the theft of over $300 worth of materials and equipment used in aquaculture, which the appellant took from a shed on the property of the Lameroo Regional Community School. The charges of unlawful possession relate to a mobile telephone said to be worth $550, a quantity of tools and a number of other items of hardware and car accessories. The larceny counts are related to a number of small items stolen from houses, with the exception of a dress stolen from a shop.

The offences were committed between December 1995 and May 1996.  With the exception of one count, which was committed at Parilla, they were all committed at Lameroo where the appellant lives.

The learned sentencing Magistrate imposed varying terms of imprisonment with respect to the nine counts ranging between three and ten months.  Some of the sentences were directed to be served cumulatively and others concurrently. In the result the total head sentence was 36 months imprisonment against which the learned sentencing Magistrate fixed a non-parole period of twelve months after allowing for three months which the appellant had already spent in custody.
There are three grounds of appeal, namely, that the learned sentencing Magistrate erred in failing to exercise his discretion to suspend the sentence, that he failed to place sufficient weight on a number of factors, including the appellant's plea of guilty and personal circumstances, and that the period of imprisonment and non-parole period were manifestly excessive.
The appellant is a 35 year old man who lives with his wife and three children aged between three and fourteen years.
Affidavits by the Police Prosecutor and by the counsel who appeared on the appellant's behalf in the court below have been put before this court.  The Prosecutor's affidavit sets out the facts relating to each of the offences as outlined to the learned sentencing Magistrate. It appears that the offences came to light following a raid on the appellant's premises on 16 April 1996.  A number of items which became the subject of the charges were seized. They were subsequently recognised and identified as items which had been stolen from houses in the area over the preceding months and, as I have said, in one case from a school.
On his arrest on the same day the appellant declined to answer any questions.
A record of the appellant's previous convictions were placed before the learned sentencing Magistrate.  This revealed a depressing list of prior convictions occupying some 24 pages and dating back to 1977.  A re-engrossment of that list has been placed before me upon the hearing of the appeal and, while it does not occupy quite so many pages, it nonetheless corresponds with the list before the learned sentencing Magistrate with the addition of an offence not appearing in that list, namely, an offence of intent to cause grievous bodily harm upon which the appellant was sentenced in August 1986 in a District Court in Perth.  That must have been a relatively serious offence in that he was sentenced to six years imprisonment with a minimum of three years non-parole, as it would be called in this State.
The learned sentencing Magistrate had the benefit of a pre-sentence report prepared by a probation and parole officer, a psychiatric report and the report of a general practitioner who practices at Strathalbyn, Dr Carrangis. This material confirmed that the appellant had had a most unfortunate childhood marked by a stormy relationship between his parents, and a violent father who was himself engaged in criminal activities and apparently introduced his children, including the appellant, to a life of crime.
The appellant has had a longstanding addiction to licit and illicit drugs.  Indeed, from the material before the court it appears that from the age of 16 he has abused barbiturates, Serepax, Panadeine Forte, Rohypnol, marijuana, heroin, speed, cocaine, magic mushrooms and LSD.  He admits to having been involved in the heroin trade in order to feed his addiction, although it appears from the report of Dr Carrangis that there has been a modicum of success with the Methadone program which she has been administering since September 1995.  Indeed, she points out that the three most recent urine drug screens had been negative for opiates.  Her report indicating that was given in May 1997.  Just what period is covered by those three drug screens is not clear.
However, if, as was suggested by the appellant's counsel to the learned sentencing Magistrate, the appellant had successfully avoided drugs during the period of the methadone program, it could not then be suggested that the spate of offending which is the subject of the present appeal is drug-related.  The first of the offences was committed after the methadone program commenced and all of the offences now in question were committed during what was said to be the currency of that program.
It follows that the submission put by the appellant's counsel before the learned sentencing Magistrate that one of the reasons for the present offending was drug-related sits uncomfortably with the rest of the history which she was anxious to advance by way of mitigation in the submissions which she made in the court below.
Over the years, and in particular in 1988 and 1992, the appellant was admitted for varying periods to James Nash House.  As to the first admission, this was for treatment for a state of toxic psychosis manifested in assaults on prison officers at Yatala Labour Prison where he was incarcerated.  On the second occasion, that is, in 1992, the referral to James Nash House followed a breach of parole conditions due to amphetamine and marijuana abuse resulting in psychotic aggressive behaviour.
Mr Boylan, who has said everything that could possibly be said to advance the appeal, put at the forefront of his argument that the learned sentencing Magistrate had erred in failing to recognise that the indications were that, as he put it, the tide had turned.  He submitted that the appellant might fairly be regarded as having turned a corner, and was making positive efforts directed at rehabilitation which should have been recognised by suspension of the prison term.
In support of that submission, Mr Boylan referred to Power v French,  a decision of the Full Court.  In that case, the accused was sentenced in this Court in April 1973 to imprisonment for three years, but the sentence was suspended upon him entering into a good behaviour bond for two years subject to conditions as to supervision.  This was despite a long record of prior convictions.
Subsequently, in May 1973, a Court of Summary Jurisdiction, although aware of that suspension, sentenced him to a term of imprisonment.  This court held on appeal that the effect of the sentence of the Court of Summary Jurisdiction was to frustrate the attempt to rehabilitate the accused, which found expression in the suspended sentence imposed in this Court, and the balance of the sentence imposed in the Court of Summary Jurisdiction was quashed, in order to enable the attempt at rehabilitation of the accused to proceed unimpeded.
That was a very different case.  In this case, at the time he was sentenced, the appellant was not subject to a suspended sentence designed to reinforce efforts at his rehabilitation.  Indeed, as I pointed out to counsel on the hearing of the appeal, some of the offences now in question were committed during the currency of a good behaviour bond which was imposed upon him in September 1994 in the Magistrates Court sitting at Pinnaroo.  On a common assault charge, the appellant was then sentenced to three months imprisonment, suspended upon his entry into an eighteen month bond to be of good behaviour.
The first of the present spate of offending occurred during the currency of that bond.  It does not appear that he has been charged with breach of the bond, and the sentence of imprisonment then imposed remains unactivated.
As Ms Juttner for the respondent has pointed out, the appellant has, in fact, had the benefit of some five suspended sentences.  Notwithstanding that, he has failed to turn away from a life marked by persistent offending.  As I said in Butler v Henderson:
"It has been emphasised in many cases that the question whether the offender is to be given the benefit of a suspended sentence is a matter of discretion for the court imposing the sentence.  It has also been said that if an adult offender has already received the benefit of one suspended sentence, the court should pause long before giving the offender the benefit of another,"
citing the judgment of Wells J in Walker:

Of course, courts endeavour to turn defendants away from a life of crime. Rehabilitation is constantly recognised as one of the central features of the criminal justice system. But in order to justify suspension, there must be "good reason" within the meaning of s38 of the Criminal Law (Sentencing) Act 1988. I am quite unable, despite the earnest arguments advanced by Mr Boylan, to see that there possibly could be said that in this case there was good reason to suspend.
In reaching that view, I accept, as Mr Boylan points out, that despite the depressingly long list of prior convictions, it might be said that the more recent of them are less serious than the earlier ones.  But that is an observation of marginal significance, given the appellant’s overall record and the seriousness of the present offending.
The first ground of appeal fails.
As to the suggestion that the learned sentencing Magistrate failed to place sufficient weight upon various factors which are set out in ground (b) of the appeal, which include the appellant's plea of guilty and the relatively minor nature of most of the offences, I am unable to accept that that ground is made out either.
The learned sentencing Magistrate is an experienced Magistrate who was provided with a good deal of information as to the appellant's background.  He refers to some aspects of that background during the course of his sentencing remarks.  It is clear that he had paid due regard to all that he had been told as to the personal circumstances and history of the appellant.  He concluded his sentencing remarks, by acknowledging the submission that had been made against suspension, but he rejected it, referring at that stage to what he described as, "Everything that has been put to me by learned counsel and in the medical and pre-sentence report together with the psychiatric report".
Clearly, the learned sentencing Magistrate considered all of the matters which are referred to in the notice of appeal.  But he was clearly correct in reaching the conclusion that the objective seriousness of the offending, and the other matters relevant to the case, required the imposition of a custodial term of imprisonment.
As to the final ground of the appeal, which is that the head sentence and the non-parole period are manifestly excessive, in my opinion, it simply could not be said that that is so.
In her most helpful schedule of the penalties imposed on the various offences and the maximum terms of imprisonment set by the legislation submitted by Ms Juttner, it appears that the penalties imposed with respect to each of the offences was very substantially below the statutory maxima in every case.  Standing back, it is impossible to say that thirty-six months total head sentence was manifestly excessive.
The non-parole period of twelve months, even allowing for the three months spent in custody, was not a long parole period against that head sentence.  Indeed, Mr Boylan conceded during the course of his argument that if the Court was not moved towards acceptance of his submission that the head sentence itself was manifestly excessive, he would be unable seriously to suggest that the non-parole period was excessive.
I take into account one other matter to which I have not so far referred.  That is that for various reasons which it is unnecessary to go into, it appears that the appellant was on bail for a considerable period of time, in excess of twelve months, following his first appearance in the court below and the occasion upon which he was sentenced.  The point was made that he did not re-offend during the period of bail and that this counts in his favour.  Of course, it does count in his favour.  But I must say that the behaviour of the appellant while awaiting sentence may not be a good guide as to his behaviour once the sentencing process is completed.  The long record of prior convictions tends to lend support to the view that his behaviour while on bail should be treated with a good deal of circumspection.
I dismiss the appeal.
[FOLLOWING FURTHER DISCUSSION WITH COUNSEL]

HIS HONOUR:  No order as to costs.