Buttigieg v Police No. Scgrg-99-677 Judgment No. S276

[1999] SASC 276

BUTTIGIEG V POLICE

[1999] SASC 276
Magistrate’s Appeal
1 MARTIN J. This is an appeal against the penalty imposed for offences of break, enter and larceny, contrary to s 171(a) of the Criminal Law Consolidation Act 1935 and false pretences, contrary to s 195 of that Act.
2 The appellant pleaded guilty on 19 May 1999.  He was convicted of both offences and a single penalty of five months imprisonment was imposed.  The learned special magistrate then remanded the appellant in custody in order 'to consider the question of suspension of sentence'. 
3 When the hearing resumed, his Honour commenced in the following manner:
'I hope that this has been a salutary experience for you.   I do hope that Kristian doesn't get involved in such activity again.  I warn him if he does, there will be a substantial penalty.  By that I mean imprisonment of some months, would in my assessment be inevitable.'
4 His Honour then referred to some of the matters of mitigation and to R v Weaver (1973) 6 SASR 265. He suspended the sentence upon condition that the appellant enter into a bond, for a period of two years, in the amount of $1 000, together with conditions that he be of good behaviour and perform 200 hours of community service within nine months.
5 The grounds of appeal complain that the magistrate erred in recording convictions and that the penalty was manifestly excessive, both as to the length of the term of imprisonment and the imposition of 200 hours of community service. 
6 In his brief sentencing remarks, the magistrate did not canvass the facts of the offending.  From the affidavit filed by the prosecutor and an affidavit filed by counsel for the appellant, it appears that the appellant visited the home of his former girlfriend in order to attempt a reconciliation.   When he discovered that no-one was home, he decided on the spur of the moment to enter the premises and steal the property.  The rear door to the premises was closed but unlocked.  At that time, the appellant was depressed because of unhappy home circumstances relating to the separation of his parents and he owed approximately $4 500 as a consequence of two motor vehicle accidents.  It was in those circumstances the appellant succumbed to temptation and stole a large quantity of property from the home, the total value of which was approximately $8 726. 
7 The offence occurred in the middle of the afternoon.  The appellant travelled to a Cash Converters premises where he sold a considerable quantity of property for the rather lowly amount of $200.  He then returned to his own home. 
8 There is a dispute as to the precise manner in which the appellant's offending was discovered.  Counsel for the appellant says that the appellant initially confessed to his grandmother and it was as a consequence of that confession that his father and stepmother located the remaining property in his motor vehicle.  The prosecution maintain that it was the discovery by the father and stepmother of the property in the car that led to a confession by the appellant.  Whatever be the precise circumstances, it is clear that the appellant immediately confessed and expressed his deep contrition.  The appellant's father contacted the victim that evening and, subsequently, the appellant attended at the victim's premises with his father to return some of the stolen property.  He confessed and apologised for his behaviour. 
9 In addition to making full admissions to the police, the appellant was able to direct the police to Cash Converters where the property he had sold was recovered.   An issue arose as to property that remained missing and the appellant has made full restitution for that property.   Ultimately, the victim has been fully recompensed and I understand that the $200 was repaid to Cash Converters.
10 It is perhaps indicative of the circumstances of this matter that the appellant has now reconciled with his girlfriend.  Those circumstances clearly disclose a strong combination of matters in mitigation of penalty.  The appellant was only 18 years of age and without any prior conviction.  There was an element of naivety about his conduct and he confessed at the earliest possible opportunity.  Similarly, at the earliest opportunity, he met with the victim and apologised.  He pleaded guilty at the first opportunity and is clearly contrite.  The magistrate was advised that the appellant had passed Year 12 and wished to undertake a Bachelor of Education teaching qualification, preferably in Melbourne where his mother resides.  At that time he was working part-time with his father in South Australia. 
11 In view of all those circumstances, counsel urged the magistrate not to record convictions as the appellant's future prospects would be damaged if convictions were recorded.  In rejecting that plea, the magistrate referred to the appellant as an 'adult albeit a young person'.  His Honour said he had considered the submissions of counsel concerning the appellant's hopes for the future.  While acknowledging that such a consideration had to be taken into account, his Honour expressed the view that on balance matters as serious as those before him ought not to be allowed to pass without conviction.  That was not the only indication of his Honour's predominant concern with the seriousness of the offending. 
12 Having made the remarks to which I have referred, his Honour then made the following observation:
‘A former Chief Justice was clearly of the view that first offenders ought to expect to go to gaol for between six to eight months.  In those circumstances I too would indicate that the appropriate penalty is one of imprisonment.'
His Honour then recorded the convictions and imposed the sentence of five months imprisonment.  He then concluded his remarks by saying: 
‘Hopefully that brings home the reality to you of your predicament.  These are serious matters and as an adult you are required to take full responsibility for your action.'
It was then that his Honour remanded the appellant in custody to appear two days later in order to consider the question of suspension of the sentence. 
13 It is undoubtedly correct that first offenders who commit crimes of breaking and entering and larceny are not entitled to assume that they will not be required to serve a period in custody.  It is not correct to say as a broad proposition, however, that all first offenders ought to expect to go to gaol for between six to eight months.  Each case must be assessed according to the particular circumstances of the offending and the offender. 
14 There is another aspect of concern.  As mentioned, having imposed a custodial sentence on Wednesday, 19 May 1999, his Honour remanded the appellant in custody to Friday, 21 May 1999 to consider the issue of suspension.   In all the circumstances, as they existed before his Honour, it is difficult to avoid the conclusion that his Honour did so in order to teach the appellant a lesson and to impress upon him the seriousness of his circumstances.
15 The practice of remanding in custody arose for consideration in ex parte Rundle, ex parte Cartledge (1982) 30 SASR 283. The appellants in that matter were remanded for sentence by a magistrate and bail was refused. They applied to the Supreme Court for bail. In view of the number of matters that had come before him from the same magistrate, Cox J considered the principles upon which a court of summary jurisdiction should or should not act in taking a plea of guilty from a defendant and then remanding the defendant in custody for sentence. In the course of that consideration, his Honour said (p 287):
'More importantly, whether or not the books expressly say so, I have no doubt that judges commonly remand a defendant for sentence in custody, not because they expect to give him a prison sentence at the end of the remand period but because they expect not to.  There are many cases in which the best thing to do, in a difficult case, is to let a defendant have a brief experience of what he is, by way of sentence, narrowly missing, and then to release him on a bond in the hope that he will not offend again.  To deny such a power to the courts is to reduce the sentencing options available and, in a borderline case, possibly tip the scales in favour of a sentence of imprisonment.  Obviously that would be regrettable.'  (my emphasis)
16 I respectfully agree with his Honour's observations.  It is to be noted, however, that his Honour was referring to difficult or borderline cases in which letting a defendant have a brief experience of incarceration would prevent the scales from tipping in favour of requiring that a sentence of imprisonment be served.  In my opinion this was not such a case.   Importantly, Cox J went on to observe that, as with all sentencing principles, this principle must be applied humanely and circumspectly.
17 Having observed it was not possible to enunciate a rule of thumb that would cover all cases, his Honour said:
'Plainly, if the circumstances make any loss of liberty inappropriate, the defendant should not be remanded in custody ...  The test would always be, for the magistrate as for this court on review, whether the remanding in custody was a just order to make in all the circumstances.'
18 Leaving aside whether convictions should have been imposed, in my opinion there should never have been any question in the magistrate's mind that this was a borderline case, or that a brief experience was required in order to tip the scales in favour of suspension of the sentence.  In my view the remand in custody was inappropriate.
19 There is another indication as to the emphasis that the magistrate gave to what he understandably perceived was the seriousness of the offence. In addition to imposing a sentence of imprisonment, which was suspended, his Honour required that the appellant perform 200 hours of community service within a period of nine months. The maximum period of community service that can be imposed pursuant to s 47 of the Criminal Law (Sentencing) Act 1988 is 320 hours. The Crown has properly conceded that there may be an issue as to whether that quantity of hours, when considered in conjunction with the imposition of the suspended sentence, was manifestly excessive.
20 There is no doubt that there was a need to have regard to both the factors of punishment and deterrence. In the rather unusual circumstances of this matter, however, as previously mentioned there was a strong combination of circumstances in mitigation which required a balancing exercise. Proper weight had to be given to the personal circumstances of the offender and to his rehabilitation. Giving full recognition to the constraints imposed upon this court when interfering with the exercise of a discretion (House v R (1936) 55 CLR 499), in my opinion the exercise of the sentencing discretion miscarried as the learned magistrate allowed the seriousness of the offending to be given too much weight. In addition, in my view his Honour has given insufficient weight to the strength of the mitigating circumstances to which I have referred. I have also reached the view that, in the context of the total penalty, the imposition of 200 hours of community service was manifestly excessive.
21 It remains then to determine the appropriate penalty and to determine whether convictions should be recorded.  As indicated previously, a large quantity of property was stolen.  The issue of whether convictions should be recorded is particularly difficult.  The offence of breaking and entering and larceny is prevalent and there have been expressions in recent years by judges of this court indicating that the time may have arrived when the range of appropriate penalties, frequently called the tariff, should be reconsidered with a view to increasing that tariff.  Those remarks are an indication of not only the prevalence of the offence, but of the view of some members of the court that the tariff is inadequate.
22 On the other side of the scales are the various factors to which I have referred which, in combination, create a special case.  In particular I have in mind the youth of the appellant, his immediate confession both to his family and to the victim, his contrition and the full restitution achieved within a short time. 
23 In my opinion, this is one of those special cases in which the observations of Debelle J taken from MacGregor v Police (1995) 66 SASR 269, incorporating Yardley v Betts are of particular force:
'The criminal law exists for the protection of the public and the protection of the public must remain the first concern of the court. But public concern about crime should not displace the fundamental concepts of justice and mercy which should animate criminal tribunals of civilised nations. Whilst the protection of the public is the first concern of the courts, if, consistently with that, the courts can, in their compassion, assist another human being to avoid making a ruin of his life, they ought to do so. These observations will immediately be recognised as those made by King CJ in Yardley v Betts (1979) 22 SASR 108 at 112-113'.
24 The impact of a conviction upon a young person hoping to improve his life by undertaking tertiary education with a view to entering the teaching profession must not be underestimated.  This issue has caused me considerable anxiety but, on balance, I have decided that it is appropriate not to record convictions and to impose a penalty that will enable the appellant to get on with his rehabilitation and his future without the impediment of the convictions. 
25 Pursuant to s 18A of the Criminal Law (Sentencing) Act 1998, I impose one penalty. As provided for in s 18 of the Sentencing Act, I impose a fine of $1 000 and order that the appellant perform 50 hours of community service within the next six months. I allow three months to pay.
26 As required by s 47(1)(d), I direct that the appellant report to the Department for Correctional Services, Adelaide Community Correctional Centre, 181 Flinders Street Adelaide, no later than two working days from today, unless within that period he receives a notice from the director to the contrary. I order that the respondent pay the appellant's costs fixed at $150.