BUCK v Police

[2005] SASC 485

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

BUCK v POLICE

Judgment of The Honourable Justice Duggan (ex tempore)

8 December 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

Appeal against sentence imposed by magistrate - appellant pleaded guilty to the offences of theft, interfering with a motor vehicle and being unlawfully on premises - sentenced to a global penalty of 4 months imprisonment in respect of all offences with the condition that he perform 120 hours community service - whether magistrate considered Criminal Law (Sentencing) Act 1988 s 11 - whether magistrate erred in allowing a 20 per cent reduction for appellant's lack of prior convictions - appeal allowed - suspended sentence of imprisonment set aside - in lieu thereof the appellant required to enter into a good behaviour bond in sum of $200 for period of two years and to perform 120 hours of community service within 10 months.

Criminal Law (Sentencing) Act 1988 s 11, referred to.
Budnjo v Police (2003) 225 LSJS 296, applied.

BUCK v POLICE
[2005] SASC 485

Magistrates Appeal (Ex tempore)

1. Duggan J.              The appellant pleaded guilty in the Magistrates Court to three offences arising out of the same incident.  On 25 May 2005 he entered the premises of an automobile wrecker at Lonsdale and stole 15 litres of petrol.  He was charged with the offences of theft, interfering with a motor vehicle, and being unlawfully on premises.

2. The learned magistrate convicted the appellant and sentenced him to a global penalty of imprisonment for four months in respect of all offences.  The sentence was suspended upon the appellant entering into a bond to be of good behaviour for two years.  It was a condition of the bond that he perform 120 hours of community service within a period of 10 months.  The appellant has appealed against the sentence on various grounds.

3. The appellant was 25 years of age at the time he was sentenced.  He had no relevant previous convictions.  He is in receipt of a disability support pension as a result of long-standing learning and memory difficulties.  Since leaving school he has had various jobs but has experienced difficulty in retaining employment because of his disability.  Evidence of good character was tendered before the magistrate.

4. One of the grounds of appeal complains that the magistrate erred in failing to consider whether a sentence of imprisonment was an available punishment having regard to s 11 of the Criminal Law (Sentencing) Act 1988 (“the Act”). Ms Waite, for the appellant, also relied on a related complaint that the magistrate did not consider whether alternatives to imprisonment were appropriate in all the circumstances of the case. Section 11(1) of the Act provides as follows:

   11(1)        A sentence of imprisonment may only be imposed –

   (a)if, in the opinion of the court –

   (i)the defendant has shown a tendency to violence towards other persons; or

   (ii)the defendant is likely to commit a serious offence if allowed to go at large; or

   (iii)the defendant has previously been convicted of an offence punishable by imprisonment; or

   (iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or

   (b)if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).

5. The magistrate made no reference to this section in his sentencing remarks. In my view the circumstances of the case required close attention to the section. The only aspect of the section which is conceivably relevant to the present case is s 11(1)(a)(iv). In the course of his sentencing remarks the magistrate said:

   “… these are extremely serious offences, not least of which is count three that alleges the defendant was on premises for an unlawful purpose.  Proprietors of commercial buildings and establishments are entitled to expect that when premises are secured that people in the defendant’s situation, whether acting of their own volition or going along with the activities of a co-accused, should understand that entering other people’s premises and taking things therefrom is a crime.  This is the very sort of crime that Parliament clearly has intended to proscribe.  These are serious offences, all three of them and any one of them would qualify in that category.”

6. While it is important not to regard the appellant’s offending as trivial, I am of the view that the circumstances were not of such gravity as to satisfy the condition precedent in s 11(1)(a)(iv). I also agree with the submission that it was more relevant in this case to have regard to the actual offending as opposed to the category of offences with which the accused was charged and to which he pleaded guilty.

7. In the absence of any reference to s 11 in the sentencing remarks, despite the fact that the section required careful consideration, there is a clear possibility that the magistrate overlooked the section when he came to sentence the appellant. In any event, I am of the view that s 11, when applied to the present circumstances, required the imposition of a non-custodial penalty.

8. A further complaint was that the magistrate said he allowed a 20 per cent reduction for the appellant’s “absence of relevant prior court appearances”.  This approach was criticised in Budnjo v Police (2003) 225 LSJS 296 where it was pointed out that this was an inappropriate way in which to take into account lack of previous convictions as a relevant factor.

9. For these reasons the sentence must be set aside and the sentencing discretion exercised afresh.

10. The appellant admitted the offences to the police and pleaded guilty to them.  I have said that he has no relevant previous convictions.  I have had regard to the character evidence tendered on his behalf.  In the circumstances I think it can be said that the appellant is unlikely to commit such offences again.  Furthermore, having regard to his character, antecedents and age, good reason exists for not recording convictions.

11. The appeal will be allowed and the suspended sentence of imprisonment imposed by the magistrate will be set aside.

12. In lieu thereof the appellant will be required to enter into a bond in the sum of $200 to be of good behaviour for a period of two years.  It will be a further condition of the bond that he perform 120 hours of community service within 10 months.

13. The order of the magistrate that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 12 months, commencing on 3 November 2005, will remain.  The orders made by the magistrate as to costs and levies will also remain.