Burton v Police No. Scgrg-00-341

BURTON v POLICE
[2000] SASC 174

Magistrates Appeal: Criminal

MULLIGHAN J This is an appeal against sentences imposed by a learned Magistrate sitting in the Magistrates Court at Elizabeth on 23rd March 2000 for various offences which sentences together amounted to a total head sentence of three years and three months with a non-parole period of two years to commence on 16th January 2000.
The offences occurred over a period of ten months. I mention them and the dates upon which they were committed: being unlawfully on premises, driving without a licence, driving a motor vehicle with headlamps and a rear lamp not alight, and failure to truly answer questions (6th December 1998), breaking, entering and committing an offence (18th February 1999), driving a motor vehicle whilst disqualified from holding or obtaining a licence to drive a motor vehicle (“drive disqualified”) and driving an unregistered motor vehicle (“drive unregistered”) (1st May 1999), drive disqualified (2nd July 1999), drive disqualified, drive unregistered, driving an uninsured motor vehicle (“drive uninsured”) (15th September1999), unlawful possession, drive disqualified, drive unregistered, drive uninsured (23rd September 1999), drive disqualified, drive unregistered, drive uninsured and driving a motor vehicle contrary to a defect notice and removing a defect notice (29th September 1999).
He pleaded guilty to all but the offences committed on 23rd September 1999 before another Magistrate on 12th January 2000 who remanded the appellant to 10th March 2000 and ordered a pre-sentence report and a psychiatric report. On 10th March 2000 the appellant also pleaded guilty to the offences committed on 23rd September 1999.
The appellant is aged 21 years. He has a long record of prior offending commencing in 1992 when a child. His past offences include larceny, throwing a missile to cause injury or damage, using offensive language, building breaking and felony, resist police, illegal interference with a motor vehicle, possessing a controlled substance, being unlawfully on premises, driving without a licence, driving unregistered, being in breach of a bond, giving a false name and address, receiving, loitering, possessing equipment to administer a nominated substance and common assault. All of these offences were committed whilst the appellant was a child and were dealt with in the Youth Court, as it is now known. On occasions he was discharged without penalty, with or without conviction, but on many occasions he was convicted and fines were imposed or he was required to enter into bonds. When aged 16 years he was again convicted of building breaking and felony and the antecedent report shows that he was sentenced to imprisonment for five months which, I assume, was not imprisonment but detention. At about the same time he was convicted of receiving and found to be in breach of a bond. The record shows that he was sentenced to imprisonment for two months which, I also assume, was detention. On 17th June 1996 he was convicted of a drink driving offence and driving without a licence and fined. He attained the age of 18 years on 23rd July 1996. On 26th September 1996 he was convicted of another drink driving offence. On 19th December 1996 he was convicted of three counts of breaking and entering a building and committing an offence and sentenced to detention for six months. On the same day he was convicted of robbery and sentenced to detention for three months. On 5th March 1997 he was convicted of breaking and entering a building and committing an offence. He was sentenced to detention for four months. These offences were committed before the appellant attained the age of 18 years.
His prior offending continued on a frequent and regular basis as an adult. The offences were of a similar nature. I mention only those of particular significance.
The record produced on the hearing of this appeal reveals that on 21st February 1997 the appellant was convicted of breaking and entering a building and committing an offence and was sentenced to imprisonment for 13 months with a non-parole period of nine months. These offences are said to have occurred on 5th October 1996 after the appellant had attained the age of 18 years. On 10th April 1997 he was convicted in the District Court of breaking and entering a building to commit an offence and was sentenced to imprisonment for 21 months with a non-parole period of 12 months. This offence is said to have occurred on 23rd October 1996.
On 17th April 1997 he was convicted of two counts of breaking and entering a building and committing an offence and was sentenced to imprisonment for 16 months with a non-parole period of 11 months which sentence was suspended. These offences occurred on 4th August 1996. On 8th May 1997 he was convicted of unlawful possession and sentenced to imprisonment for three months to be served cumulatively upon earlier sentences but there was no alteration to the non-parole period. The offence is said to have occurred on 24th October 1996.
I doubt that the information contained in this record as to the offending of the appellant as an adult is entirely correct as I was informed that the appellant had only one prior conviction for breaking and entering and committing an offence as an adult, which I assume is the conviction on 21st February 1997. I proceed on that basis despite the other convictions referred to in the record.
Nevertheless his record of past offending is so extensive that it is difficult to comprehend how a person so young could have committed so many serious offences.
I turn now to a brief description of the offences which are the subject of the sentences challenged on this appeal. The appellant broke and entered the house of a woman at about 1.00 pm on 18th February 1995 at Golden Grove and stole electrical goods and compact discs together of the value of $6,168. He was seen by a neighbour loading the property into a motor vehicle. He had gained entry to the premises by breaking a glass door and he left fingerprints in the lounge room. There was another male person in the vehicle. The appellant was not located by the police and arrested until 13th December 1999. He was refused bail and has been in custody ever since.
I have mentioned the dates of the various driving offences. The appellant was disqualified from holding or obtaining a licence to drive a motor vehicle by administrative decision because he was in default of paying fines: see s61A of the Criminal Law (Sentencing) Act 1988. All of the offences of drive disqualified were committed because he drove a motor vehicle contrary to those decisions. That procedure for licence disqualification ceased to exist as from 6th March 2000 as s61A was repealed by the Statutes Amendment (Fine Enforcement) Act 1998 which came into operation on that day. However, the former procedure was in operation at the time when the orders for disqualification were made against the appellant and there is no question of his guilt of the various drive disqualified offences. I mention the significance of this matter later.
The offence of being unlawfully on premises was detected by police when the appellant was seen leaving business premises at Kadina at about 4.35 am. He drove off in a motor vehicle and was followed by police. At one stage he turned off the lights of the vehicle. When stopped by police, he gave the name of his brother and his date of birth. He denied the offence of being unlawfully on the premises, but the learned Magistrate was informed that he did admit being on the premises for illegal purposes, presumably with the intention to break and enter and steal. The charge of unlawful possession related to two cigarette lighters found in the possession of the appellant when he was stopped by police having driven an unregistered motor vehicle.
A report was provided to the learned Magistrate by Mr Balfour, a psychologist. In his opinion the appellant does not suffer any psychiatric condition, major mood disorder or intellectual disability. However, he suffers from a personality disorder. He is of low to average range of intelligence and has limited literacy skills. He had a troubled childhood. His father was violent and an alcoholic and left his mother when the appellant was a very young child. He has two brothers, both of whom have been in trouble with the law. His relationship with his mother is good. He was placed in foster care regularly from age seven years to age eleven years and was physically abused. Since the age of 13 years he has been detained in a variety of juvenile institutions. He obtained above average grades at school but was frequently in trouble due to offending and truancy. He was physically violent to other students. He left school at the age of 13 years, although he was obtaining above average grades. He has never been employed and has not had motivation to work. He has no marketable job skills. His associates are drug takers and offenders and he has no close friends. He is socially immature and has poor independent living skills. He has never had any significant relationship with a woman. He has no serious medical condition but has suffered asthma and respiratory problems due to drug abuse. This drug abuse has been extensive and has involved cannabis, amphetamines, heroin, mild tranquillisers, “magic mushrooms”, ecstasy and LSD. He has continued to be a frequent user of cannabis and amphetamines, but he ceased taking the other drugs some time ago before he was returned into custody. According to Mr Balfour, the appellant disclosed to him that his offending commenced at the age of six years and that he has been committed to all the youth institutions and prisons in this State. He associates predominantly with a negative peer group, the members of which take illegal drugs and have a history of offending. He is influenced by this group. His prospects of rehabilitation are poor without the assistance of a supervised and structured rehabilitation programme over a period of not less than two years. His prognosis as to re-offending is poor and he is exhibiting evidence of the early stages of becoming institutionalised.
The learned Magistrate was informed that the appellant did not recall the offence of breaking, entering and larceny but accepted his guilt and the allegations made against him.
According to Mr Balfour, it is possible that the appellant does not recall the breaking and entering offence which is the subject of this appeal because he was affected by drugs and because of his being in a state of denial. However, he did tell Mr Balfour that he would not have committed the offence if he had not owed money to a man who was causing people to go to his house and threaten him. That matter did not feature in the submissions made on his behalf to the learned Magistrate but it is mentioned in Mr Balfour’s report which was before the learned Magistrate. The appellant has not disclosed the name of the person in the motor vehicle at the time of the offence.
The learned Magistrate took a serious view of the offences and of the appellant. He noted that the appellant had not said anything about the other man present when the breaking and entering of the building and the larceny occurred. He regarded that offence as very serious. He referred to his record as bad, vast and long. He said that the appellant had numerous breaking, entering and larceny offences as a juvenile and as an adult, which has been seen to be incorrect regarding his offending as an adult.
Also, the learned Magistrate said that an aggravating feature of this offence was that the appellant had only been released from custody a few months earlier which, he said, demonstrated an attitude of total disregard for the law. In fact, the appellant was released in October 1997, about 16 months before committing the subject offence, but he had been in custody between August 1998 and November 1998 due to his failure to attend a court ordered rehabilitation programme. I was not informed of how it came about that the appellant was returned to prison, but that is not of particular significance as the learned Magistrate did not appreciate that the appellant had been at liberty in the community for about 10 months without offending.
The learned Magistrate said, in his remarks on penalty, that the appellant had “absolutely no remorse for the victims who are hurt by” him. The appellant told Mr Balfour that he was remorseful about his conduct, particularly the breaking, entering and larceny offence, and that is the submission which was made by his counsel. Of course, the learned Magistrate could reject that information and submission, and perhaps he did accept them to some extent, because later in his remarks he said that the appellant had indicated that he felt remorse but had not shown it.
Credit was given to the appellant for his pleas of guilty, but the extent of that credit was not revealed. The learned Magistrate did consider the question of rehabilitation and in that context referred to the past record of the appellant. He said that the appellant had in the past rejected all attempts of rehabilitation to change his ways.
The sentences which were imposed were imprisonment for two months on the charge of being unlawfully on the premises, imprisonment for two years on the charge of breaking, entering and larceny to be served cumulatively on the first mentioned sentence of imprisonment for two months’ and imprisonment for a total period of thirteen months on the various charges of drive disqualified. The appellant was convicted of all of the other offences without penalty except with respect to some of the other driving offences in respect of which licence disqualification for six months to commence on 23rd March 2000 was ordered.
I now turn to the matters raised on this appeal.
In determining the sentence on the offence of breaking, entering and larceny, the learned Magistrate said that he had regard to the observations of King CJ in The Queen v Halse (1985) 38 SASR 594. It is conceded that the learned Magistrate has not correctly applied those observations to the circumstances of the present case. It has long been accepted that the sentencing standards for this offence are as expressed by King CJ in Halse. He said, at p595, that usually a sentence of nine to twelve months should be imposed by Magistrates for first offenders who have pleaded guilty with suspension of the sentence being a serious option. For a single offence committed by a previously imprisoned offender where there has been a plea of guilty and the value of property taken is small, the sentence should be in the region of twelve to eighteen months. It is submitted by the appellant and conceded by the respondent that this standard was not applied by the learned Magistrate. It is possible that the reason for his not doing so is that he was misled by the past record of the appellant which was placed before him.
Also, as has been mentioned, the learned Magistrate made two factual errors. Clearly he regarded the appellant as having committed multiple offences of this nature as an adult, which is an error, and he took the view that the appellant committed the offence soon after release from prison. I think that the appellant should be regarded as falling within the second category mentioned by King CJ as a starting point, but he is not simply a second offender. His past record as a youth is relevant and cannot be ignored. Also the appellant stole property of considerable value. These two matters suggest that the starting point should be a sentence towards the higher end of the range, but, of course due allowance must be made for the personal circumstances of the appellant and any features of extenuation which may be established by reason of any threats made to him and his severe drug addiction. The sentence of two years is manifestly excessive for another reason. If due allowance is to be made for the plea of guilty, the learned Magistrate must have had a starting point of in excess of two years and six months which far exceeds the sentencing standard in Halse even after paying due regard to the record of the appellant as a youth.
However, because of the view I have taken about this appeal, I decline to fix a sentence or to express any further opinion other than to say that it has been established that a sentence of two years is manifestly excessive.
It has not been suggested that the learned Magistrate erred in imposing the sentence of two months for the offence of being unlawfully on premises or in making the orders for licence disqualification.
I turn now to the sentences for the offences of drive disqualified. In my view, they are manifestly excessive. A total sentence of twelve months for these offences offends the totality principle. The appellant is a young man and such a heavy sentence requires intervention.
After the change in legislative approach for the enforcement of fines came into operation on 6th March 2000, the police formulated a prosecution policy to be observed by police prosecution. It is as follows:
“As from the 6th March 2000, Statutes Amendment (Fines Enforcement) Act 1998 is operative. From this date, debtors will have their driver’s licence suspended pursuant to section 70E of the Criminal Law (Sentencing) Act. A breach of that suspension can result in a fine, disqualification of licence or cancellation of licence and disqualification. Imprisonment will no longer be a sentencing option.
The Transitional Provisions of the amending legislation provide as follows.
If on the 6th March 2000, the defendant has been disqualified under section 61A of the Criminal Law (Sentencing) Act the following provisions will apply:
h..... if disqualification has endured for 60 days or more - disqualification cancelled;
h if disqualification has endured for less than 60 days - disqualification will be taken to be an order of suspension from the date of the original order.
The effect of this transitional provision is that an offender, on the 5th March 2000, can be prosecuted for a fines default disqualification, pursuant to section 91 Motor vehicles Act, and be subject to a period of imprisonment. The same offender, on the 6th March 2000, either commits no offence (if disqualification has endured for 60 days or more) or is deemed to have committed the offence of drive under suspension, pursuant to section 70E Criminal Law (Sentencing) Act, and not be subject to a period of imprisonment. This creates an anomaly, which is contrary to the principle of common fairness. Accordingly, a prosecution for a breach of a fines default order, committed prior to the 6 Jan 00* should not proceed on the basis of the following, exemplar considerations, which are included in the DPP’s Statement of Prosecution Policy and Guidelines.
h..... The primary obligation of the prosecution to be fair.
hWhether the public interest requires a prosecution.
h..... Whether the prosecution would be perceived as counter-productive, for example, by bringing the law into disrepute.
hWhether the consequences of any prosecution/conviction would be unduly harsh and oppressive.
h..... The necessity to maintain the public confidence in the application of the law.
* ..... This date represents the period after the expiration of the 60 days transitional period.”
The appellant committed the various offences of drive disqualified before the changes in the law and the prosecution policy was formulated. It is to be expected that the learned Magistrate, the police prosecutor who appeared in the present case and the appellant’s counsel were not aware of it when the appellant was sentenced. If any of them had been aware of the policy, it is likely that it would have been revealed in court and the appellant would have been given the opportunity of making submissions to the prosecution to have the charges withdrawn and for the appellant to have been dealt with regarding outstanding fines under the new regime.

He should now have that opportunity. The convictions for the drive disqualified offences and the sentences imposed with respect to them should be set aside and those complaints should be remitted to the Magistrates Court to be heard afresh. Without reflecting in any way upon the learned Magistrate, they should be heard by a different Magistrate.
There was another error made by the learned Magistrate. He declined to backdate the sentence and the non-parole period to 13th December 1999 when the appellant was refused bail having been arrested on warrants relating to the drive disqualified charges. The appellant did not make any arrangements to pay the outstanding fines which was the reason for the disqualification of licence. The learned Magistrate backdated the sentence and the non-parole period to 16th January 2000. He was informed by counsel for the appellant that a portion of the time spent in custody had been on remand and the balance had been serving warrants for non-payment of fines. In an affidavit of that counsel received by me on this appeal, she stated that she could not remember how much time the appellant spent in custody for each purpose.
The correct position is that the appellant was arrested on the charges of drive disqualified, was brought before the Magistrates Court on those charges and was refused bail with respect to them. Accordingly it is submitted on this appeal that the sentence and non-parole period should have been backdated to 13th December 1999. It seems that the information given to the learned Magistrate may have been incorrect. Whatever those responsible for his custody may have thought about the matter, it does seem clear that the appellant was in custody on remand with respect to the drive disqualified charges and the sentence should have been backdated to 13th December 1999: see Tong v Police (1998) 198 LSJS 398.
I have declined to sentence the appellant afresh on the breaking and entering and committing an offence charge because the same court should sentence him for all offences so that there may be due regard to the principles of proportionality and totality.
I allow the appeal and set aside the convictions on the charges of drive disqualified and the sentences for those offences and for the offence of breaking, entering and committing an offence. The complaints alleging offences of drive disqualified are remitted to the Magistrates Court for rehearing. The information alleging the offence of breaking, entering and committing an offence is remitted to the Magistrates Court for rehearing for the purpose of imposing sentence.

[2000] SASC 174

22 June 2000