BURBY v Police - [2021] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
BURBY v POLICE
[2021] SASC 28
Judgment of the Honourable Justice Lovell
19 March 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appeal against sentence. The appellant pleaded guilty to 18 offences in the Magistrates Court. He was sentenced to nine months and 10 weeks imprisonment. He contends that the Magistrate erred in his application of the applicable sentencing discounts. He also complains of the failure to suspend the term of imprisonment.
Held, allowing the appeal:
1. The Magistrate erred in applying the applicable sentencing discounts.
2. The sentence of the Magistrate is set aside.
3. The appellant is re-sentenced to 11 months and 10 days imprisonment, backdated to 13 March 2020. The balance of the sentence is partially suspended from 4 December 2020.
4. Ancillary orders made.
Sentencing Act 2017 (SA) ss 26 & 39, referred to.

BURBY v POLICE
[2021] SASC 28

LOVELL J:
Overview

The appellant is a drug addict. He pleaded guilty to 18 offences spanning a period of 15 months. He was entitled to sentencing discounts of up to 30% and 40% due to differing dates of guilty pleas being entered. In sentencing, the Magistrate combined some sentences and imposed some single sentences. The total sentence imposed was nine months and 10 weeks. The appellant contended that the Magistrate failed to apply the applicable discount to some of the sentences. He further contended partial suspension should have been imposed. The respondent conceded that the Magistrate erred in applying the sentencing discounts and that it was open to me to re-sentence, but on re-sentence, the same sentence should be imposed.
I allowed the appeal and heard submissions on re-sentence. This judgment provides my reasons and re-sentencing of the appellant.
The offending
·On 28 December 2018, the appellant stole a motor vehicle from a residential address. He drove unlicensed, never having held a licence. He drove without due care and collided with the rear of a stationary vehicle, causing that vehicle to collide with two other vehicles. He left the scene of the accident and did not report the collision to police.[1]
[1] MCPAR-19-2961 counts 3-4 and 6-7.
·On 22 February 2019, the appellant was found to be in unlawful possession of a motorcycle that had been stolen during a criminal trespass on or about 14 February 2019.[2]
[2] MCPAR-19-11009 count 2.
·On 29 April 2019, the appellant made off without paying for $15.20 worth of petrol.[3]
[3] MCPAR-19-9633 count 2.
·On 8 May 2019, the appellant unlawfully entered a construction site and caused between $10,000 and $15,000 worth of damage.[4]
[4] MCPAR-19-9633 counts 5 and 34.
·Between 14 May 2019 and 16 July 2019, the appellant breached his bail by failing to report to police on 10 occasions.[5]
·On 3 June 2019, the appellant further breached his bail by failing to reside at his required residence.[6]
·On 4 July 2019, the appellant stole a motorcycle jacket, gloves and a helmet. The goods were recovered but they were not in saleable condition.[7]
·On 9 September 2019, the appellant possessed steroids without a prescription.[8]
·On 3 October 2019, the appellant breached his home detention bail by returning a positive urine test to a number of drugs.[9]
·Between 3 October 2019 and 15 October 2019, he further breached his bail by failing to answer calls or text messages from the Department for Correctional Services on eight separate occasions.[10]
·On 7 February 2020, the appellant stole alcohol valued at $706.94 from a liquor store.[11]
·On 17 February 2020, the appellant was located sleeping in a stolen vehicle.[12]
·On 18 February 2020, the police observed the appellant driving at high speeds. They pursued the vehicle for some distance and estimated the speed to be at 135 to 140km/hr in 80km/hr zones. The pursuit was terminated due to the appellant’s manner of driving.[13]
·On 12 March 2020, he was in possession of Lyrica tablets without a prescription.[14]
[5] MCPAR-19-9633 count 7.
[6] MCPAR-19-9633 count 18.
[7] MCPAR-19-9633 count 25.
[8] MCPAR-19-9633 count 30.
[9] AMC-19-9863 count 1.
[10] AMC-19-9863 count 2.
[11] MCPAR-20-2502 count 1.
[12] MCPAR-20-2502 count 2.
[13] MCPAR-20-2502 count 5.
[14] MCPAR-20-2502 count 4.
Grounds of appeal
The appellant appeals the sentence imposed by the Magistrate on the following grounds:
1.The Magistrate erred in applying section 39 of the Sentencing Act 2017 (SA) in that the maximum statutory discounts for the pleas of guilty, entered by the appellant, were not applied to the appellant’s sentence.
1.1In the alternative, the Magistrate erred in failing to provide reasons for not applying the maximum statutory discounts for the pleas of guilty to the appellant’s sentence.
The appellant originally complained of the Magistrate’s failure to partially suspend the sentence of imprisonment. However, given that partial suspension was not put forward to the Magistrate, this ground had no merit. Following the appeal being allowed, and after I invited counsel to make submissions as to re-sentence, partial suspension was again raised by the appellant.
Extension of time
The notice of appeal was filed out of time and the respondent does not oppose the granting of an extension of time. I grant the extension.
Consideration
The Magistrates Court is a very busy jurisdiction and accordingly, allowances should be made for the circumstances in which the Magistrate imposed the sentence, especially when considered against the backdrop of sentencing for 18 offences with varying applicable discounts. Errors in the sentencing process will occur from time to time, and although I consider the final sentence to be within the appropriate range, the number of errors in this matter are sufficient for the court to interfere.
Re-sentencing submissions
Accordingly, I allowed the appeal and invited counsel to make submissions as to re-sentence.
The appellant conceded that no application for a partially suspended sentence bond was raised before the Magistrate in sentencing submissions, although it was a matter to be considered on re-sentence. As at the day of appeal, the appellant had served just shy of nine months of the original nine months and 10 weeks sentence. Given the time spent in custody, it was submitted that a partially suspended sentence should now be imposed.
It was conceded appropriately by the respondent that given the amount of time the appellant had already served in custody, it was open to me to re-sentence and then partially suspend the balance, taking into consideration time spent in custody. The respondent accepted that given the personal circumstances and background of the defendant, it was of no benefit to him or the community to be released having spent no time on parole or under supervision.
Re-sentence
Notwithstanding the process errors, I consider the sentence imposed by the Magistrate to be appropriate and proportional to the offending. I therefore impose the same sentence of one year, two months and 10 days[15] following the application of the correct maximum applicable discounts.
[15] The original sentence of 12 months and 10 weeks (before time in custody was taken into account) is equivalent to one year, two months and 10 days.
As to file MCPAR-19-2961 and count 3, driving unauthorised, count 4, driving without due care and count 6, failing to provide particulars following a collision, I impose convictions without further penalty. As to count 7, unlawful possession, I sentence the appellant to 6 months imprisonment. I reduce that by 40% due to the early plea of guilty for a sentence of 3 months and 19 days imprisonment.
As to MCPAR-19-11009 and count 2, unlawful possession, I sentence the appellant to 2 months imprisonment. I reduce that by 40% for a sentence of 1 month and 7 days imprisonment.
As to AMC-19-9863 and counts 1 and 2, breaches of bail, I impose one sentence pursuant to s 26 of the Sentencing Act. I sentence the appellant to 1 month imprisonment, less 30%, for a sentence of 22 days imprisonment.
As to MCPAR-19-9633 and count 2, make off without payment, count 18, breach of bail and count 30, possession of prescription drug, I impose convictions with no further penalty. As to count 5, property damage, I sentence the appellant to 4 months imprisonment. I reduce that by 30% for a total of 2 months and 25 days imprisonment. As to count 7, breach of bail, I impose a sentence of 4 weeks imprisonment, less 30%, totalling 20 days imprisonment. As to count 25, theft, I impose a sentence of 7 weeks imprisonment. I reduce that by 30% to a total of 1 month and 4 days imprisonment. As to count 34, entering premises for an unlawful purpose, I impose a sentence of 6 weeks imprisonment. I reduce that by 40% for a total of 26 days imprisonment.
As to MCPAR-20-2502 and count 1, theft, I sentence the appellant to 20 days imprisonment. I reduce that by 30% for a sentence of 2 weeks imprisonment. As to count 2, illegal use, I impose a sentence of 4 months imprisonment, less 30%, for a total of 2 months and 25 days imprisonment. As to counts 4 and 5, possession of prescription drug and drive without due care, I impose convictions without further penalty.
The sentences will be served cumulatively, bringing the head sentence to one year, two months and 10 days imprisonment. I reduce that sentence by three months due to time spent in custody, for a final head sentence of 11 months and 10 days imprisonment. I backdate the sentence to commence on 13 March 2020.
I turn to whether the sentence should be partially suspended.
The circumstances as at the date of re-sentencing are different to those considered by the Magistrate. The appellant stands to be re-sentenced after having served a significant amount of time of his original sentence. I also take into consideration the benefit of the appellant being placed under the supervision of Community Corrections, particularly in relation to his drug rehabilitation.
The appellant is still a young man at 24 years of age. His offending related entirely to his drug habit. His mother is supportive of his rehabilitation and has offered her house for the appellant to reside in until he finds another appropriate address.
The safety of the community is of paramount consideration in sentencing. General and personal deterrence are also important. In my view, these considerations have been addressed by the almost nine months the appellant has spent in custody.
In all the circumstances, I consider there is good reason for the appellant to be placed on a partially suspended sentence bond.
Accordingly, the balance of the sentence, namely two months and 19 days, will be suspended upon the appellant entering into a bond to be of good behaviour for a period of 12 months. The bond has a lifespan travelling beyond the remaining two months and 19 days and I consider the threat of revocation to be an effective deterrent.
The appellant will be subject to supervision for 12 months. I further order that he obey any reasonable direction by his Community Corrections Officer as to counselling for drug addiction, that he submit himself to any urine or blood test as reasonably requested and he not consume any drug not medically prescribed.
For the sake of clarity, I set out my calculations below:

File	Count	Offence	Sentence	Discount applied	Final sentence
MCPAR-19-2961	3	Driving unauthorised	Conviction without further penalty	N/A	N/A
	4	Driving without due care	Conviction without further penalty	N/A	N/A
	6	Failing to provide particulars following a collision	Conviction without further penalty	N/A	N/A
	7	Unlawful possession	6 months imprisonment	40%	3 months and 19 days
MCPAR-19-11009	2	Unlawful possession	2 months imprisonment	40%	1 month and 7 days
AMC-19-9863	1 and 2	Breach bail	1 month imprisonment (One sentence pursuant to s 26 of the Sentencing Act 2017)	30%	22 days
MCPAR-19-9633	2	Make off without payment	Conviction without further penalty	N/A	N/A
	5	Property damage	4 months imprisonment	30%	2 months and 25 days
	7	Breach bail	4 weeks imprisonment	30%	20 days
	18	Breach bail	Conviction without further penalty	N/A	N/A
	25	Theft	7 weeks imprisonment	30%	1 month and 4 days
	30	Possession of prescription drug	Conviction without further penalty	N/A	N/A
	34	Entering premises for an unlawful purpose	6 weeks imprisonment	40%	26 days
MCPAR-20-2502	1	Theft	20 days	30%	2 weeks
	2	Illegal use	4 months imprisonment	30%	2 months and 25 days
	4	Possession of prescription drug	Conviction without further penalty	N/A	N/A
	5	Drive without due care	Conviction without further penalty	N/A	N/A

Further orders

I make the same ancillary orders as the Magistrate. I make no order for compensation with respect to the damages caused to the vehicles as those matters should be addressed by civil proceedings.
As to count 2 of MCPAR-19-9633, I order compensation payable to On the Run Mawson Lakes in the sum of $15.20. As to count 25, I order compensation payable to AMX Super Store Blair Athol in the sum of $839.85. As to count 30, I order forfeiture of the steroids.
As to count 1 of MCPAR-20-2502, I order compensation payable to Dan Murphy’s Glenunga in the sum of $706.94. As to count 2, I order licence disqualification for a period of 12 months forthwith. As to count 4, I order forfeiture of the tablets seized and as to count 5, I order licence disqualification for six months forthwith.
Orders
1.Appeal allowed.
2.Sentence of the Magistrate is set aside.
3.Re-sentenced to 11 months and 10 days imprisonment, backdated to 13 March 2020. The balance of the sentence is partially suspended from 4 December 2020.
4.Ancillary orders made.