Cameron Malcolm Graham v Brian David Miller No. SCGRG 93/1115 Judgment No. 4040 Number of Pages 5 Criminal Law Sentencing

[1993] SASC 4040

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Criminal law - sentencing - break, enter and larceny - young offender - no previous convictions - first appearance in court - sentenced to immediate imprisonment - undue emphasis upon general deterrence - sentencing discretion miscarried - insufficient consideration given to age and prospects of rehabilitation - appeal allowed - sentence suspended. Martin v. Scotland
(1972) 2 SASR 271, Giles v. Barnes (1967) SASR 174, R. v. Weaver (1973) 6 SASR
265, Yardley v. Betts (1979) 22 SASR 108, Wood v. Samuels (1974) 8 SASR 265 and Vartzokas v. Zanker (1989) 51 SASR 277 referred to.

HRNG ADELAIDE, 7 July 1993 #DATE 7:7:1993
Counsel for appellant:     Ms E M Griffiths
Solicitors for appellant:    Legal Services Commission
Counsel for respondent:     Mr S Gupta
Solicitors for respondent: Crown Solicitor for South Australia

ORDER
Appeal allowed.

JUDGE1 MULLIGHAN J This is an appeal against the penalty imposed by a learned Special Magistrate sitting as the Magistrates Court at Christies Beach on 10 June 1993 upon the appellant being convicted, on his plea of guilty, of breaking entering and larceny. He was convicted and sentenced to imprisonment for six months. The sole ground of the appeal was that the learned special magistrate erred in failing to suspend the sentence. 2. The appellant is aged nineteen years. He and three other men broke into the Woodcroft Foodland shop at about 12.30 a.m. on 9 May 1993. They went to the shop in a van which contained an electronic scanner, which, if used, would have enabled them to listen to police radio messages. They planned the offence in advance, on that day, in order to steal cigarettes to sell. 3. Once inside the shop it was necessary to break into a locked area where the cigarettes were stored. The appellant broke down a door and the men stole 75 cartons of cigarettes and fled the scene. The market value of the cigarettes is about $3,000. 4. Police stopped the van, having seen it on a nearby road, without lights, and discovered the cigarettes and the scanner. I am informed that the scanner was the property of the appellant, which he had acquired some two years previously, for innocent purposes, due to his interest in CB radios, and that he had been requested by one or more of the others to bring it along in case it was needed. 5. Understandably the learned Special Magistrate took a serious view of the appellant's offending. The crime was not only planned but was committed for commercial purposes. The presence of the scanner reveals a capacity to try and avoid detection and an intention, at least on the part of some, to employ a degree of sophistication. 6. The learned Special Magistrate rejected the submission that the appellant was merely a follower in view of the nature of his participation in the crime. He placed emphasis on the prevalence of the crime of breaking, entering and larceny in the community and of the need for general deterrence in the penalty he was to impose, but he accepted that the appellant was not to be punished for the conduct of others. He expressed a view that the first consideration must be the punitive and deterrent aspect of the penalty. He went on to say:
    "It would appear that the appellant was a full participant in this
    act of breaking and entering. He must have known, at the age of
    19 years, a very probable consequence of him being involved in
    such a serious criminal act was a term of imprisonment. He is old
    enough to realise that. Whilst I accept that his age must lead me
    to at least consider suspending the term of imprisonment, the
    regrettable fact is that many of the persons who are committing
    breaking and entering offences in our community are persons of
    about the age of the defendant, i.e. age in itself is not perhaps
    as big a factor in determining whether I should suspend the term
    of imprisonment in this case as it might otherwise be in other
    cases". 7. He expressed the view that the appellant was deserving of a sentence of imprisonment in view of the nature and serious features of the offence. He considered suspending the sentence but took the view that there was not sufficient good reason to do so in the circumstances. However, he did reduce the sentence below what he considered to be the tariff. He said:
    "I, however, will take into account his prior good character and
    an early plea. The going rate for this type of offence is a term
    of imprisonment for approximately 9 months. I will impose a lower
term of imprisonment reflecting those factors". 8. As I have said, the appeal is against the refusal of the Learned Special Magistrate to suspend the sentence of imprisonment. The sentence was fully justified in the circumstances. 9. In an appeal of this nature it must always be remembered that the question is not how the appeal court would have exercised the sentencing discretion, but whether the discretion exercised by the learned Special Magistrate miscarried due to error. 10. Before turning to that consideration I mention matters which were put before the learned Special Magistrate but not mentioned by him in his remarks on penalty. The appellant, if permitted, would join his parents in Queensland, where there is a job available for him. His parents are very supportive of him and have always been so. There is every reason to accept that they will exert an appropriate influence upon him, should he be permitted to live with them in Queensland. The learned Special Magistrate was informed that the parents had left for Queensland, leaving the appellant behind so that he could sell two motor vehicles and upon doing so join them in that State. Consequently he was a young lad without the discipline of his parents at the time that this offence was committed. It may be accepted that the appellant has real prospects of successful rehabilitation. His plea of guilty at the earliest possible time is cogent evidence of genuine remorse and contrition for his conduct, and also of his desire to face up to his wrongdoing. The attitude of his parents suggests will advance his prospects of rehabilitation. Nowhere has the learned Special Magistrate said that he has given consideration to the prospects of rehabilitation. 11. In order to resolve this appeal it is necessary to consider certain basic principles of sentencing. The learned Special Magistrate placed considerable emphasis upon the prevalence of this offence in the community and by persons of about the same age as the appellant. General deterrence in cases where the offence is prevalent is an appropriate consideration, so long as it does not result in the offender being made the scapegoat of other people who have committed similar crimes but have not been caught and convicted. Martin v. Scotland (1972) 2 SASR 271 Walters J at 272. Furthermore, the prevalence of a particular offence "can seldom if ever be the dominant factor". The circumstances peculiar to the particular offender and the particular offence must always be taken into account, as well as the general nature of the offence: Giles v. Barnes (1967) SASR 174 per Bray CJ at 181. 12. I think the learned Special Magistrate erred in taking the view that because of the prevalence of the offence the first consideration must be the punitive and deterrent aspect, as I interpret that to mean that the dominant factor must be general deterrence. Also I think the learned Special Magistrate erred in not adequately and properly having regard to the age and good character of the appellant, as the Full Court observed in the R. v Weaver
(1973) 6 SASR 265 at 267: "Whenever a young person is before the court, particularly upon his first appearance as an adult, it seems to us that his rehabilitation should be a prominent consideration in fixing sentence." 13. Here, the appellant had not previously appeared before any court at all. Far from regarding his age in accordance with that principle, the learned Special Magistrate discounted the significance of his age because of the prevalence of offences being committed by persons of that same age. Also he does not appear to have placed any emphasis upon the appellant's prospect of rehabilitation. It is appropriate to keep in mind the observations of King CJ in Yardley v. Betts (1979) 22 SASR 108, at pp 112-113:
    "To say that the criminal law exists for the protection of the
    community is not to say that severity is to be regarded as the
    sentencing norm. Times and conditions change and the approach of
    judges to their task must be influenced by contemporary conditions
    and attitudes, but public concern about crime, however
    understandable and soundly based, must never be allowed to bring
    about departure by the courts from those fundamental concepts of
    justice and mercy which should emanate from the criminal tribunals
    of civilised nations. They are summed up in the aspects relevant
    to the present discussion by Napier CJ in Webb v. O'Sullivan
(1952) SASR 65, at p 66: 'The courts should endeavour to make the
    punishment fit the crime and the circumstances of the offender as
    nearly as may be. Our first concern is the protection of the
    public, but subject to that, the court should lean towards mercy.
    We ought not to award the maximum which the offence will warrant
    but rather the minimum which is consistent with due regard for the
    public interest.' The protection of the public must remain our
    first concern but if, consistently with that, we can in our
    compassion assist another human being to avoid making a ruin of
his life, we ought surely to do so." 14. Of course there is a real danger that a significant period in prison will ruin the life of a young person. 15. The correct approach upon considering whether a sentence of imprisonment should be suspended was discussed by Walters J in Wood v. Samuels (1974) 8 SASR 465 at 468:
    "Speaking for myself, I would think that a suspended sentence is
    imposed only when by eliminating all other alternatives the court
    thinks the case is one for imprisonment, and though it be a case
    for imprisonment an immediate custodial sentence is not required
    in the circumstances of the particular case. In my view a
    suspended sentence is aimed primarily at the offenders where it is
    not appropriate to send to prison for the first time and who it is
most likely to benefit from an exercise of the court's clemency." Additionally there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence, but the perceived seriousness and the intrinsic character of the particular offender and any element of persistence can serve as important restraints on the choice of the suspended sentence. On the other hand the likelihood that further criminal behaviour cannot reasonably be assessed is a matter which may well bring the offender within the scheme of the legislative policy which enables the rigours of a custodial sentence to be awarded. 16. My attention has also been drawn to the observations of King CJ in Vartzokas v. Zanker (1989) 51 SASR 277 at 279:
    "The object of the courts is to fashion sentencing measures
    designed to reclaim such individuals wherever such measures are
    consistent with the primary object of the criminal law which is
    the protection of the community. Very often a person who is not
    disadvantaged and whose character has been formed by a good
    upbringing but who has lapsed into criminal behaviour will be a
    good subject for rehabilitative measures precisely because he
    possesses the physical and mental qualities, and by reason of his
    upbringing the potential moral fibre to provide a sound basis for
    rehabilitation. It would be a great mistake to put considerations
    of rehabilitation aside in fashioning a sentence for such a
    person." 17. Having regard to all of those principles I think the Learned Special Magistrate was in error in his approach to the question of whether the sentence should be suspended. I do not mean to give the impression that any youthful offender may expect a suspended sentence. That cannot be the case, but where there are appropriate qualifying factors the court should always lean towards that option, unless the circumstances of the offence and the offender plainly dictate that the option is inappropriate. Such is not the case here. Suspending of a sentence of imprisonment for an offence of this nature is not uncommon. Regrettably the offence is commonly committed by young people but that in itself is no reason, in principle, to decline to suspend the sentence. The courts must always look carefully at the offender and his or her attitude to the wrongdoing, and attitude generally to the question of rehabilitation when considering whether to suspend a sentence of imprisonment. Too much emphasis, in my view, was given to the deterrent aspects of punishment and too little to the age of the appellant and what appears to be real prospects of his successful rehabilitation. 18. In those circumstances the sentencing discretion was carried and must be exercised afresh. If I was free to do so I would impose a sentence of imprisonment for a longer period than six months, but that aspect of the sentence is not the subject of this appeal. The appellant must regard that sentence as lenient. I am satisfied that there are sufficient grounds to suspend the sentence and I allow the appeal for that purpose. The sentence is suspended upon the appellant entering into a bond in the sum of $200 to be of good behaviour for a period of two years, to be under the supervision of a probation officer and to obey the directions of the probation officer as to employment and the appellant's place of residence.