Butler v Police No. Scgrg-98-678 Judgment No. S6763

[1998] SASC 6763

BUTLER v POLICE

Magistrates Appeal
Debelle J

This is an appeal against sentence.  The appellant pleaded guilty in the Magistrate's Court at Elizabeth to two offences of break, enter and larceny and one offence of an attempt to break and enter a home unit.  The offences all occurred at Glandore on 4 February 1998.  He had committed them together with a man called Ricky Sugar.  The total value of the goods stolen was $3,450.  His role in that offending was that of keeping watch and assisting Mr Sugar.  He did not himself physically engage in the act of breaking and entering the premises.  In addition, the appellant pleaded guilty to being unlawfully on premises in Unley on 5 February 1998.  He was sentenced to a period of imprisonment for two years and four months on the charges of break, enter and larceny and to a period of imprisonment for one month on the charge of being unlawfully on premises, the latter sentence to be served concurrently with a sentence of two years and four months. 

The premises which had been broken into, or which an attempt was made to break into, were domestic premises.  In each case damage was caused to the premises. Items of value were stolen.  They have not been recovered.  The offences were committed whilst the appellant was on parole.  The sentences were ordered to be cumulative upon a period of imprisonment for one year eleven months and 22 days, which was the unexpired portion of the sentence for which the appellant was on parole.  That sentence had been imposed in relation to offences including breaking and entering.  Thus, there was a total head sentence of four years, three months and 22 days.   The magistrate fixed a non-parole period of 22 months. 

The appellant appeals on the ground that the penalty was manifestly excessive. 

The appellant is aged 39 years.  He has a history of committing criminal offences.  His first more serious offences occurred in New South Wales in 1983 and 1984.  For those offences he was sentenced in May 1984 to a period of imprisonment. Those offences were breaking, entering, stealing and robbery offences. 

Sometime later he became a victim of the use of heroin and he offended frequently, often to serve his heroin habit.  It seems that he has taken steps to overcome his predilection to the use of heroin and for a period of years was able to abstain from its use.  However, since 1994 it seems he has returned to it in times of stress.  His use of heroin has caused his relationships with his family to terminate.  It appears also to have caused one de facto relationship to terminate.  In addition to the offences I have recited, the appellant has a number of offences of dishonesty, including offences of breaking, entering and larceny.  In July 1995 he was sentenced to three years and 10 months for offences of larceny and false pretences. 

Thus the appellant comes to this court, not as a first offender, but as a person who has served sentences in the past for offences of dishonesty.  He is not, of course, to be punished again for those offences.  They are simply recited as indicating that he does not come to the court as a first offender. 

There is one other troubling aspect of these prior offences.  On more than one occasion, the appellant has been released on parole but has committed offences whilst on parole.  Indeed, these particular offences occurred within four months of his release on parole.  This would seem to indicate that the appellant has learned little from the periods of detention for the offences which he had committed.  It is, however, to be said in his favour that on his release on 31 October 1997, he did secure employment.  It seems it was casual employment with a firm which makes labour available to others.  The work, however, was intermittent.  A few weeks before his arrest, the appellant had to cease work because of problems with his back. 

The magistrate, who sentenced the appellant, made quite extensive remarks when doing so.  The remarks are carefully expressed and is apparent that the magistrate has carefully approached the question of sentence.  He has referred to all of the materials which were before him including a pre-sentence report.  He has had regard to all of the relevant factors.  He has had regard to the circumstances of the offences.  He has had particular regard to the circumstances of the offender.  He has referred not only to his prior history but also to the prospects, albeit relatively slim prospects, of rehabilitation.  He has had regard to the circumstances of the appellant after his release on parole on 31 October.  The magistrate has also had regard to the seriousness of these offences and in particular that goods of substantial value were stolen but never recovered. 

The sentences ordered by the magistrate were well within the range of sentences for this kind of offending: see R v Halse (1985) 38 SASR 594. The magistrate has also had regard to the totality principle. There were some aggravating features of this offending. They have been mentioned but I will briefly summarise them. These were offences of dishonesty and were of a serious nature. They involved breaking into domestic premises and damage was caused to the premises. The property which was taken has not been recovered. It is a further aggravating feature that the appellant re-offended within a relatively short time after his release on parole.

The appellant's role in these offences was that of an accomplice.  He was there to keep lookout whilst his colleague, Mr Sugar, broke and entered the premises.  The offending cannot be regarded as an instance of one single offence committed perhaps on the spur of moment and without proper thought for the impact it might have on his parole.  Instead three offences were committed in the same area on the one day, at least one of them being committed after the offenders had almost been caught by the occupant of one of the premises.  Not content with that the appellant, on the following day, was detected unlawfully on other premises. 

It is apparent from the appellant's submissions that he bitterly regrets his conduct and he is concerned that the penalty is out of proportion to his criminality.  Despite his earnest submissions on his own behalf, I am unable to accede to those submissions for the reasons which have already been given.  His conduct was too repetitive to permit any weight to be given to the submissions he has made.  I repeat the learned magistrate has carefully approached all of the issues relating to sentence.  He has had regard to all relevant factors and the sentence is well within the range available for this kind of offending. 

In the all the circumstances, I am not satisfied that the sentence imposed was manifestly excessive.  I must therefore dismiss the appeal.  The order will be appeal dismissed.