Cardona v Police No. Scgrg-98-1075 Judgment No. S6847

[1998] SASC 6847

CARDONA V POLICE

[1998] SASC 6847
Magistrates Appeal
Perry J ( Ex tempore)
The appellant appeals against the sentences imposed upon him following his plea of guilty in the Magistrates Court sitting at Port Adelaide to charges of receiving and illegal use of a motor vehicle and related offences. 
The charge of receiving alleged that the appellant on 25 March 1998 at Albert Park received a CB radio and other goods together of the value of $859 knowing them to have been obtained unlawfully, contrary to s196(1) of the Criminal Law Consolidation Act, 1935.
The offence of illegal use and other offences, namely drive unlicensed, driving at an excessive speed, straddling lanes and carrying an offensive weapon, were committed two days later, namely on 27 March 1998.
The appellant was also charged with a further offence, namely breach of a bail condition.  So that there were seven offences in all. 
The appellant was represented by counsel who put submissions on his behalf.

On the receiving count, the learned sentencing magistrate imposed a sentence of four months imprisonment.  On the illegal use charge and all of the other charges taken together, with the exception of breach of the bail condition, he imposed a sentence of three months imprisonment.  On the charge of breach of the bail condition he entered a conviction without penalty. 

In the result, there was a head sentence of seven months imprisonment.  In addition, on the charge of illegal use of a motor vehicle, the appellant was disqualified from holding or obtaining a driver's licence for twelve months. 

The appellant is a thirty-six-year-old man born in New South Wales.  He left home at the age of seventeen following which he has had two relationships, both of which ending in tragic circumstances in that his partners died of drug overdoses.   His daughter by his first relationship is in the custody of friends in New South Wales. 

It was put to the learned sentencing magistrate following the death of his partners the appellant lapsed into abusing alcohol.

On the basis of the offender history report placed before the learned sentencing magistrate, he had a history of prior offending dating from 1997 involving offences of larceny, receiving and other offences including false pretences. 

As to the receiving charge now in question, this related to a number of items stolen from an unattended utility parked in a suburban street.  When questioned by the police shortly afterwards, the appellant said that he had been aimlessly walking the streets with two other men and that he collected items which they brought to him.   Although he did not know where they were getting it from, he knew they were breaking into cars. 

The vehicle the subject of the illegal use count, was stolen from the street in front of the owner's house in the early hours of the morning.  Not long afterwards, the appellant was stopped by the police whilst driving it.   Before the vehicle was stopped it was timed at travelling at eighty kilometres per hour on Grand Junction Road.  He was driving it at the time without a licence. 

The appellant gave different versions of the circumstances of the illegal use count when interviewed on different occasions by the police officers, but it appears likely that the learned sentencing magistrate sentenced him on the basis that another man stole the vehicle and allowed the appellant to drive it at the latter's request. 

Ms Barnett, who appeared for the appellant, submitted at the outset of her argument that the learned sentencing magistrate had adopted too high a starting point with respect to his consideration of penalty, in particular on the charge of receiving. 

During the course of his remarks as to penalty, the learned sentencing magistrate said:

"I give you credit for pleading guilty.  I am told that you have been in custody for nine weeks.  I will increase that to three months because of your plea of guilty and I will deduct that three months from the sentence you would otherwise have received. 

You committed these offences shortly after coming out of prison for offences of dishonesty.  In those circumstances, you cannot expect anything other than to be imprisoned.  Distasteful as it might be for me, I record a conviction on the charge of receiving.  In my view, a period of seven months imprisonment is warranted for this offence but I deduct the three months credit and imprison you for four months commencing forthwith.  For the illegal use and other offences committed on 27 May 1998 you will be imprisoned for a period of three months."

The learned sentencing magistrate went on to direct that both sentences be served cumulatively, hence the head sentence of seven months imprisonment in all. 

The gravamen of the submission put by Ms Barnett is that given the appellant's cooperation with the police and his full and frank admissions made to them with respect to the receiving count, the starting point of seven months for the receiving count was simply too high.

In my opinion, that criticism is not made out. 

The maximum sentence for receiving is eight years imprisonment.  As the learned sentencing magistrate pointed out, the appellant committed the offence of receiving not long after having been released from custody having served another sentence.

In fact, as was put by Mr Muscat who appeared for the respondent, the appellant was released from prison on 9 January 1998 after serving a sentence of five months imprisonment for a number of offences including offences of dishonesty. 

As I have indicated, it was on 25 March 1998 that the appellant committed the offence of receiving upon which he was arrested on the same day.  I have been informed that he was released on bail by the police on 26 March 1998 whereupon the very next day, on 27 March 1998, he was arrested and charged with the offence of illegally using a motor vehicle and the related offences to which I have referred.  He was refused bail on that occasion and remanded in custody but managed to secure home detention bail on 7 May 1998. 

He was not out for long on home detention bail before he was arrested on 29 May 1998 for breaching the conditions of his bail agreement.  The breaches were apparently in failing to remain at a stated address and in using drugs. 

Against that background, it seems to me that the offending the subject of the appeal must be regarded as a reflection of a failure on the part of the appellant to recognise his obligation to keep out of trouble, and is indicative of an intention to persist in offending.  It is a circumstance of aggravation that having been apprehended on 25 March and released the very next day, within twenty-four hours he committed the further offence of illegal use. 

Even if it could be suggested that the sentence for receiving was too high, the same could certainly not be said about the three months imprisonment imposed on the illegal use and other counts.  Three months imprisonment is the statutory minimum applicable to the charge of illegal use of a motor vehicle alone.  So that three months imposed not only with respect to that offence but also with respect to the other four counts to which I have referred, seems to me to be a modest sentence indeed. 

At this stage, my function on appeal is simply to stand back and look at the overall sentence that was imposed, in this case seven months, and determine with respect to the totality of offending whether the appellant has satisfied the onus of demonstrating that the sentence was manifestly excessive.  In my opinion, he has failed to do so.  Furthermore, if I was responsible for fixing the sentence, I do not think that it could conceivably be fixed at any less than what the appellant was given overall. 

Before parting with the matter, I mention that counsel for the respondent, Mr Muscat, proffered an affidavit which he invited the court to receive in evidence which had annexed to it a much lengthier list of prior offences than that which was before the learned sentencing magistrate. 

It appears that the appellant has a long history of prior offending in New South Wales, Queensland and Victoria dating back to 1980.  The explanation I was given by Mr Muscat for the failure by the prosecutor to place the full list of the appellant's prior convictions before the learned sentencing magistrate is that it was not produced on the computer search made at that time but that subsequently, when it was realised that the appellant had an interstate record, a further computer search was made which produced the list which Mr Muscat now seeks to tender.

He did so on the alternative bases either that it was fresh evidence within the meaning of the rules relating to the receipt by an appellate court of fresh evidence, or on the footing that if I was otherwise minded to interfere with the sentence, I would be entitled to take into account the further material now available. 

The first ground could not possibly be made out.  The rules as to the receipt of fresh evidence are clear and involve satisfying the court that the evidence which is proffered by way of fresh evidence could not by reasonable diligence have been available to the person seeking to tender it at the time of the first hearing. 

There is nothing whatever to suggest that the Police Prosecution Department or whatever facilities they have access to, could not be so structured as to indicate in every case whether an accused person has an interstate as well as a local criminal history. 

If the system is deficient in that it fails to indicate that, then I do not think that that deficiency can be cured by an attempt to proffer a record of interstate convictions as fresh evidence on the hearing of an appeal. 

The prosecution owe a duty to assemble all of the material which it wishes taken into account in the Magistrates Court before the hearing in that court.  If it fails to do so, it cannot expect to have the opportunity of a second attempt on appeal. 

Clearly, this evidence was available at that time in that it could have been obtained by appropriate computer searching.  The failure to obtain it at that stage cannot be cured in the way that Mr Muscat suggests. 

As to his second ground, I pronounce no view about it.   As I am not minded to reconsider the penalties imposed in this case, no error having been demonstrated, it is unnecessary for me to consider whether, if I had found error and opened up the penalties, in those circumstances the full history of prior offences could then be considered. 

For the reasons which I have given, the appeal is dismissed.