Cardona v SA Police No. Scgrg-97-1537 Judgment No. S6484

[1997] SASC 6484

CARDONA  v  POLICE

Magistrates Appeal

Olsson J (ex tempore)       

The appellant appeals against a series of custodial sentences imposed on him by a stipendiary magistrate in respect of some seven separate offences to which he ultimately pleaded guilty. He complains that the sentences ought to have been suspended and that, in any event,  they were manifestly excessive.

Details of the offences as I have noted them to be in date order are as follows. On 11 June there was one offence of common assault. On 2 August 1997 there was one offence of larceny of chattels and money to the total value of $1,240. On 4 August 1997 there was one offence of interfering with a motor vehicle and one offence of larceny of chattels and money to the value of $840. Finally, on 12 August 1997 there was one count of larceny, one count of receiving and one count of false pretences, all of which really related to a single item, being a Sony Walkman valued at $150.

As I understand the endorsements on the file the learned magistrate imposed separate sentences, each of eight months imprisonment, in respect of each of the four separate complaints which charged the offences in question.

They were, in effect, directed to be served concurrently because they all ran from 12 August 1997, that being the date when the appellant was taken into custody.

I must confess to some misgivings about the sentencing strategy which was adopted. Whilst it is true that the ex tempore sentencing remarks are somewhat equivocal in the way in which they are expressed, I do get the distinct impression that what the magistrate was setting out to do, in practical terms, was, in effect, to adopt a s18(a) of the Criminal Law (Sentencing) Act 1988 approach and impose a global sentence in respect of all offences. That, of course, he could not do under s.18(a), which restricts the imposing of a single global sentence to offences charged within the one complaint, or the one information.

I arrive at that conclusion because it seems to me somewhat illogical to have imposed a precisely similar custodial sentence in respect of each of four quite disparate types of offending as evidenced by the four separate complaints.  Whilst I sympathise with the attempt at practicality which was sought to be applied by the learned magistrate, it constitutes an error in sentencing principle.

It seems to me that, in those circumstances,  I am required to reconsider the sentencing strategy which was adopted in this case.

The appellant is a man aged 36 years.  He had an extensive offending background, dating back to 1979, when the initial offences were committed. His antecedent record includes a wide range of offences.  Some of them are quite serious, but they include offences of dishonesty, property damage, assault and a miscellaneous series of offences which relate essentially, if I may so describe them, to both drug and alcohol abuse over quite a lengthy period of time. It appears from the material before me that, at about the age of 17, the appellant rebelled against his father's authority, left home and thereafter embarked on a course of substance abuse and crime. At least that is how it is described in the reports on file. By 1994 he appears to have become addicted to heroin. For a time he seems to have quit the drug habit and lived a law abiding life in New South Wales with a female partner and a baby child. He emanates from New South Wales, which is his State of birth.

The documentation before me indicates that, early in 1997, the appellant separated from his then partner, following some form of domestic dispute. He came to Adelaide at that point in time and resumed a lifestyle which involved substance abuse and basically living on the street, or in some manner akin to that.  It appears from what is before me that he later formed another relationship.   In about mid-1997 he seems to have determined, in concert with his then partner, to give up alcohol abuse.  I infer that his partner was then addicted to heroin.  On the night on which he formed that resolution (and she agreed to cease substance abuse) it seems that his partner unwittingly took a heroin overdose.  That brought about her untimely death.

It is said in the reports that, in a state of grief and shock, the appellant resumed serious alcohol abuse activity.  It appears to be beyond question that the offences which I have recited were all, generally speaking, committed whilst the appellant was under the influence of alcohol and affected by an unresolved grief problem.

A probation officer has reported to the learned magistrate that, prior to his incarceration, the appellant had approached the Salvation Army counselling services for assistance.

It was said that that organisation is prepared to assist him with an alcohol rehabilitation program.

The reports also indicate that the appellant would be eligible for an alcohol behaviour modification program conducted by the Department of Correctional Services.  It is also reported that the Aboriginal Prisoners and Offenders Support Services Organisation is prepared to assist in helping the appellant.

These are all matters, of course, which were emphasised before the learned magistrate.

On reading his sentencing remarks, it is, I think, fair to say that the learned magistrate seems to have been a little cynical concerning what he seems to have perceived to have been relatively belated moves by the appellant to seek help.  Seemingly they were moves which, in the view of the magistrate, he perhaps ought to, or at least could have made at an earlier point in time.

On the other hand, assuming that the appellant was genuine in seeking to rehabilitate himself, the learned magistrate was prepared to accept that his rehabilitation prospects seemed good.

In the course of his sentencing remarks the learned magistrate made it clear that the appellant was not to be further punished for his prior offences.  However, he did make the point that the appellant's antecedent history necessarily militated against leniency.  It did demand proper recognition of the factors of personal and general deterrence.

It is fair to say that the learned magistrate took a particularly serious view of the offence of common assault to which he specifically referred.

I think that it is therefore necessary to dwell for a moment on the facts relating to it.  They are set out in the affidavit of the Police Prosecutor.

The circumstances were that at about 10.10 p.m. on the evening in question the victim of the assault, and a female companion, were standing on North Terrace near the Adelaide Railway Station pie cart.  The appellant approached the victim and his companion and requested a cigarette.

I am not entirely clear as to the precise exchange that occurred at that point.  It is asserted that the victim did not hear all that was said to him at the time.  Certainly neither the victim, nor his companion, gave the appellant a cigarette.

The appellant, at that point, walked away.  He returned shortly thereafter and said something to the effect: `I don't hit females, so I might as well hit you.'  The reference to the females was an apparent reference to the female companion of the victim.

It was put to the learned magistrate that, without further ado, the appellant then hit the victim in the head three or four times with repetitive punches, after which he then walked away.  The prosecutor indicated that the blows caused the victim to bleed from the mouth.

When subsequently interviewed by the police the appellant's explanation was simply to the effect that he became angry because he knew that the people concerned had cigarettes and refused to give him one.

Looking at the situation objectively it really is difficult to imagine a more wanton and unprovoked attack on a citizen in a public place than this.  It follows that the factors of personal and general deterrence necessarily loomed large as sentencing considerations.

The offence of larceny consisted of what really was a bare faced purloining by the appellant of chattels which were momentarily placed by a tourist, who was staying at the Plaza Hotel in Hindley Street, in the passage outside his hotel room door, seemingly as part of the process of checking out.

The simple excuse given by the appellant to the police when interviewed was that he found the items in the hallway.  He conceded that he made no attempt to find the owner of them and merely appears to have appropriated the goods as his own.

The offences said to have been committed on 4 August 1997 related to another, quite separate, incident.

It is beyond doubt that, on that occasion, the appellant broke into a locked car which was parked on a city street.  He stole from it a mobile telephone, cash and some personal papers. He was said to have been intoxicated at the time.

The stolen property was actually recovered from the appellant, who was found to be not far distant from the scene when apprehended.

Finally, the Walkman, the subject of the offences on 12 August 1997, was stolen from a Japanese tourist who was staying at the International Youth Hostel in Crompton Street, Adelaide.  The tourist was absent from his room, having breakfast.  When he returned to his room his Walkman was missing. It is beyond question that it was taken by, or at least ended up in the possession of, the appellant, who thereupon proceeded to pledge it for a loan at Cash Converters in Gouger Street.

Against that factual background Mr Petraccaro contends that the sentencing package adopted by the learned magistrate was excessive, because it did not adequately take into account a number of important factors.

He particularly referred to the timely pleas entered by the appellant and, by inference, of course, his co-operation with the police officers.

He also drew attention to the appellant's unresolved grief, the fact that, for reasons which were not of his own making, he had sunk back into alcohol abuse and that there was some positive evidence (accepted by the learned magistrate) of good prospects for rehabilitation.

I think that the learned magistrate did essentially bear most of those factors in mind, although it must be said that he did not make any particular reference to the timely pleas.  On principle, they entitled the appellant to an appropriate tariff discount.

On the other hand the learned magistrate was, of course, required to take into account a number of countervailing factors. There was, as I have pointed out to Mr Petraccaro, the inherently serious nature of the offending, particularly the offence of assault.

He also needed to consider the appellant's bad antecedent record extending back over a number of years, the very important factors of deterrence which arise in this case, the past failure of the appellant to respond to a prior pattern of many different types of sentencing options (a number of them being of a relatively lenient nature), and the fact that in this case there was a continuing pattern of conduct extending over a period of some weeks.

The learned magistrate had before him the task of sentencing for what was a series of quite discrete and separate offences which, on normal principle, should have attracted cumulative sentences.

It seems to me, against that background, that the learned magistrate was, in any event, faced with a situation in which it was well nigh impossible to conclude that this was an appropriate situation in which to impose custodial sentences and then suspend them.  I do not think that was an option that was realistically available to him, as he himself recognised.

I consider that the real issue in this case is as to what period of time ought to be served by the appellant in proper recognition of the factors to which I have referred, but which, at the same time, did recognise the mitigating features identified by Mr Petraccaro - particularly what are reasonable prospects of rehabilitation, if the appellant avails himself of the support that he needs and is apparently available to him.

As I feel that the learned magistrate adopted a sentencing approach which was not correct in principle, I am entitled - indeed bound - to reconsider the matter afresh.  It is open to me to accord the appellant a degree of leniency which, perhaps, might not otherwise be appropriate on an appeal such as this.

I think that, in all of the circumstances, he is entitled to have a series of sentences imposed upon him which are crafted so as to recognise the relevant mitigating factors and promote, to the maximum extent feasible, his prospects of rehabilitation.

It is necessary to review the sentences on a complaint by complaint basis and then see where that takes us.

Now, I think that the proper course is to impose a series of custodial sentences and then to direct that they be served concurrently, rather than cumulatively.  This will achieve a degree of leniency, which, in other circumstances, might not be appropriate.

I regard, as did the learned magistrate, the offence of common assault as being the most serious of the offences. It is the clear duty of the court to protect innocent members of the public going about their occasions from nasty incidents of this type.  What occurred was more than a mere technical assault.  It was an assault which actually drew blood.

In all of the circumstances I propose to allow the appeal in relation to the sentence imposed in respect of this offence and to substitute for it a sentence of five months imprisonment, to run from 12 August 1997.

In respect of the offence committed on 2 August 1997, I think that the appropriate sentence is one of three months imprisonment.  I therefore allow the appeal in respect of such offence, set aside the sentence imposed and substitute that sentence for it.

In respect of the offences committed on 4 August 1997, these were quite serious in their nature, although it must be recognised that the property was, I think, recovered in that case. I think, once again, that the appropriate sentence would have been three months.  I therefore set aside the sentence imposed in respect of those offences and substitute for them a custodial sentence of three months.

In respect of the offences which stem from the incident of 12 August 1997 I consider that they stand on much the same basis as the offences of 2 August.  I allow the appeal in respect of those, set aside the sentence imposed and substitute for it a sentence of three months.

I direct that the sentences for the offences of 2, 4 and 12 August 1997 all be served concurrently with the offence in respect of the conviction for common assault.

There will therefore be orders to that effect.

There will be a further order that the respondent pay to the appellant $150 for costs of the appeal.