Bush v Police - [2009] SASC 318

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BUSH v POLICE
[2009] SASC 318
Judgment of The Honourable Chief Justice Doyle (ex tempore)
7 October 2009
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OTHERS
Appellant pleaded guilty to one count of theft – Magistrate sentenced appellant to three months' imprisonment, two months to be suspended upon appellant entering into a bond to be of good behaviour – power to suspend part of a sentence of imprisonment pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) arises only when length of sentence is "more than three months but less than one year" – appellant appealed against sentence imposed by Magistrate.
HELD: as the sentence was not one of "more than three months", Magistrate did not have power to suspend part of that sentence – appeal allowed – appellant re-sentenced – sentence of imprisonment appropriate having regard to requirement for a deterrent sentence – sentence imposed wholly suspended having regard to fact that appellant had not been sentenced to imprisonment and had not received the benefit of suspension of a sentence of imprisonment in the past, and having regard to the uncertainty surrounding the arrangements that would be made with respect to the care of her children.
Criminal Law Consolidation Act 1935 (SA) s 134(1); Criminal Law (Sentencing) Act 1988 (SA) s 38, s 38(2a), referred to.
Police v D [2004] SASC 131, discussed.

BUSH v POLICE
[2009] SASC 318
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): Ms Bush pleaded guilty to one count of theft, an offence against s 134(1) of the Criminal Law Consolidation Act 1935 (SA). The offence carries with it a maximum penalty of imprisonment for 10 years. The Magistrate sentenced Ms Bush to imprisonment for three months. He declined to suspend the sentence of imprisonment in its entirety. He did, however, suspend two months of the sentence on condition that Ms Bush enter into a bond to be of good behaviour. The bond required Ms Bush to be of good behaviour for two months, commencing on the date of her completion of one month’s imprisonment.
Ms Bush appeals against the sentence that the Magistrate imposed. She does so on the basis that the failure wholly to suspend the sentence of imprisonment resulted in a sentence that is manifestly excessive. She also argues that the Magistrate erred in failing to take account of the personal circumstances of Ms Bush. She also argues that, in a respect that I will identify, there was a technical flaw in the sentence.
Background
A complaint was laid by a member of the police force charging Ms Bush with the offence of theft. The property the subject of the offence was a woman’s handbag. The complaint alleged that the theft occurred on 24 May 2009, when Ms Bush took a handbag from a woman standing at a bus stop. According to the version of events that Ms Bush gave police when questioned, the bag was sitting on top of a bag that was on the ground next to the woman. It appears that the Magistrate sentenced Ms Bush on this basis. Ms Bush ran off with the handbag and the woman ran after her. The bag contained the woman’s prescription medication, credit cards, driver’s licence and house keys. Ms Bush got into a car driven by a man. The car left the scene. A witness followed the car but lost sight of it in traffic. The witness and the woman whose handbag was stolen saw the car’s numberplate. The police traced the numberplate to Ms Bush.
On 1 September, when Ms Bush first appeared in the Magistrates Court on the charge, she pleaded guilty. After hearing submissions in relation to sentence, the Magistrate sentenced Ms Bush. He summarised the circumstances of the offence. He considered that the offence was very serious. The only thing that separated it from the more serious offence of robbery was the absence of violence or threats of violence. He said that the offence was more serious than the theft of goods from a shop because the property the subject of the offence comprised the victim’s personal belongings, which would have been of some value to the victim. He noted that the victim suffered as a result of the offence and that it was likely that she would now be anxious when out in public with her handbag.
The Magistrate accepted that Ms Bush had had a difficult life. In particular, he noted that Ms Bush’s mother had died when Ms Bush was a child. He accepted that this would have been very distressing for Ms Bush. It is not easy to see, however, how this explains the offending or somehow lessens the culpability of Ms Bush.
The Magistrate noted that Ms Bush had been convicted of property damage in 2004 and of receiving stolen property in 2001, among other minor offences. Of more relevance was the fact that Ms Bush had been convicted of theft on 14 April 2009, that is, slightly more than a month prior to the commission of the offence in question. On that occasion, Ms Bush was ordered to perform community service.
In light of that and notwithstanding everything that had been put to him, the Magistrate considered that a sentence of imprisonment, part of which was to be served, was appropriate. The Magistrate adopted a starting point of four months’ imprisonment, which he reduced to three months on account of Ms Bush’s plea of guilty. As I have said, the Magistrate suspended two months of that sentence on condition that Ms Bush enter into a bond to be of good behaviour for two months to commence after her release from prison.
Consideration
Section 38 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) enables the court to suspend a sentence of imprisonment only if it considers that there is “good reason” for it to do so.
Pursuant to s 38(2a), the court can suspend part of a sentence of imprisonment if the sentence or sentences to which the defendant is liable is, or are in combination, for more than three months but less than one year. In that event, the court can order that the defendant serve a specified period, being not less than one month, of the imprisonment and the court can suspend the remainder on condition that the defendant enter into a bond.
A court can suspend part of a sentence of imprisonment under this provision only if that sentence is more than three months but less than one year. The sentence that the Magistrate imposed was three months’ imprisonment. It was not more than three months’ imprisonment. The appeal proceeded on the basis that, in ordering that part of the sentence of imprisonment be suspended, the Magistrate erred. I note that in Police v D [2004] SASC 131 Gray J reached the same conclusion when the sentence in question was imprisonment for exactly 12 months. He concluded that the sentence imposed was not less than one year.
In my opinion, the concession made by Ms Shanks, counsel for the respondent, is correct. The Magistrate has erred. He had power to do what he did only if the sentence that was imposed was one of more than three months. A sentence of exactly three months did not enliven the relevant power. Accordingly, the sentence must be set aside.
It is appropriate that I re-sentence Ms Bush. There is no opposition to this course of action. In doing so, I must consider the matter afresh. The question is no longer whether the Magistrate is wrong; the question is what sentence I consider to be appropriate.
Mr Mead, counsel for Ms Bush on appeal, submits that in the event that a sentence of imprisonment is imposed, there is good reason to suspend any such sentence. He submits that Ms Bush has never had the benefit of a suspended term of imprisonment before, nor has she been sentenced to a term of imprisonment before. He emphasises the fact that Ms Bush is a single mother of two dependent children. It is not entirely clear what can be done with the children if she is imprisoned, although it may be that they can be cared for by her father, who is 57 years of age and lives in a boarding house. However, just how this would be worked out is not clear to me.
Ms Shanks submits that notwithstanding the error of the Magistrate, the sentence that he imposed was in substance an appropriate one. She submits that this Court should impose a sentence that would give effect to the result intended by the Magistrate. She submits that the circumstances of the offence and the need for both general and personal deterrence in a case like this outweigh the personal circumstances of Ms Bush and militate against a finding that good reason exists to suspend a sentence of imprisonment.
I am content to adopt the Magistrate’s summary of the relevant circumstances. I have set that out above.
Ms Bush is 30 years old. I take into account the fact that she is a single mother of two dependent children. While the Magistrate did not refer to this in his remarks I am not persuaded that he overlooked this fact when he sentenced Ms Bush. There was no need for him to refer to all of the facts relevant to the sentencing exercise, bearing in mind he was sentencing immediately after hearing submissions.
Whilst the property the subject of the offence was not of significant value, the Magistrate was correct when he considered that this was a serious offence. This kind of street theft, which is not uncommon, is upsetting for the victim and makes vulnerable people nervous about their safety in public places. The fact that the offence has caused some distress to the victim is of some significance.
I find it particularly concerning that Ms Bush committed the offence not long after being convicted of theft. The sentence that was imposed on that occasion was a merciful one.
The offence the subject of this appeal indicates that a sentence with a deterrent effect is appropriate. The sentence to be imposed should give effect to the principle of personal deterrence. I consider that it is necessary to impose a sentence of imprisonment. I consider that a short sentence of imprisonment is appropriate. Like the Magistrate, I consider that it is appropriate to take account of Ms Bush’s early plea of guilty. In the end I agree with the Magistrate’s approach to the sentence of imprisonment. A sentence of three months, after making allowance for the guilty plea, was appropriate.
It is not appropriate for me to increase that sentence slightly simply to attract the power conferred by s 38(2a) of the Act. In some situations it will be appropriate to make a minor adjustment to a sentence so that the sentence accords with the statutory power. But having arrived at a conclusion that the Magistrate was right and also reaching the same conclusion myself, namely, that a three-month sentence of imprisonment is appropriate, I consider that it is not appropriate, as I have already indicated, to increase the sentence simply to attract the operation of s 38(2a). That gives rise to the question as to whether the sentence of imprisonment should be suspended.
The question is whether there is “good reason” to suspend the whole of the sentence. I bear in mind, as Mr Mead pointed out, that Ms Bush has served several days of the sentence of imprisonment that the Magistrate imposed. Notwithstanding Ms Bush’s previous offences, and in particular the offence for which she was convicted in April of this year, I am persuaded in the end that there is good reason to suspend the sentence of imprisonment.
I found Mr Mead’s analysis of Ms Bush’s record helpful. I agree with him that it indicates that while she has a number of prior convictions, there have been three periods of offending. This suggests that there have been times when there have been things happening in her life that might have contributed to the offences. It is fair to say that none of the offences are particularly serious, although it is concerning that she has accumulated the record that she has accumulated. Nevertheless, I have taken the view in the end that her record of offending is not an obstacle to a conclusion that the sentence should be suspended.
I am also influenced by the potential effect of imprisonment on her children. As I have said, it seems to me that even if her father can care for them, putting the children in the boarding house where he lives would not be particularly suitable accommodation for the children and it remains unclear to me whether this would in fact eventuate.
I take into account the fact that Ms Bush has not previously served a term of imprisonment, nor has she had the benefit of a supervised bond. Taking all of those things into account I consider it appropriate that Ms Bush be given one last chance.
Accordingly I make the following orders:
1That the appeal be allowed.
2That the sentence imposed by the Magistrates Court be set aside.
3That a sentence of imprisonment for three months be substituted for the sentence imposed by the Magistrates Court.
4That that sentence of imprisonment be suspended upon Ms Bush entering into a bond in the sum of $500 to be of good behaviour for a period of one year. A condition of the bond is that she be under the supervision of a Community Corrections Officer and that she obey the lawful directions of the officer, and in particular undergo any counselling or treatment as directed by the Community Corrections Officer to whose supervision she is assigned.
5That within two working days of entering into the bond Ms Bush report to the office of the Department for Community Corrections at the address which will appear on the bond when signed by her.
6That there be no order as to the costs of the appeal.