Cattermole v Police No. Scgrg-97-1543 Judgment No. S6542

[1998] SASC 6542

CATTERMOLE v POLICE

Matheson J (ex tempore)

The appellant appeared before a magistrate in the Magistrates Court at Elizabeth on a number of charges involving dishonesty for which he was sentenced on 14 October 1997. 

This appeal relates to the penalty imposed by his Honour for one of those offences, namely a charge for that on 28 August 1997, at Salisbury in the State of South Australia he broke and entered Spaceland Newsagency intending there to commit an offence to which this section applies, namely larceny, a breach of s.131 of the Criminal Law (Consolidation) Act, contrary to the provisions of s.170 2) of the Criminal Law (Consolidation) Act.  The maximum penalty for the offence was seven years' imprisonment. 

The penalty imposed was a conviction, and the appellant was sentenced to nine months' imprisonment suspended upon him entering into a bond in the sum of $100 for a period of 18 months on a number of conditions.  The defendant was ordered to pay compensation of $1,778.76 to the registrar of the court for and on behalf of the Spaceland Newsagency within 12 months. 

The facts were as follows:

"  In relation to the break committed on the 28th of August 1997, the victim in relation to this matter is Spaceland Newsagency, located at shop 5/73 John Street Salisbury.  Darryl Levi is the owner of [the] shop and is able to speak for and on behalf of the shop.  Levi states that at about 7.00 pm on Wednesday 27 August 1997 he left the shop locked and secured.  He states at about 12:36 am on Thursday 28 August, 1997 he received a phone call at his home address to say that the alarm at his shop had been activated.  Levi states that he then attended the shop and observed that the shop front window, size 2.5m x 2.5m, was smashed.  He states no one had permission to damage is property or steal any of the property.  The estimated cost of repair to the window is $1,000.00 and the cost of the damaged property is $1,000.00 and the cost of the damaged property is $1,000.00.  Property damaged were statues and figurines which had been located behind the shopfront window.  The total cost of damage is $2,000.00.  The victim is seeking compensation for the damages.

At about 12:34 am Thursday 28 August 1997 police attended the vicinity of Home Hardware store, Wiltshire Street, Salisbury in relation to a possible property damage offence being committed.  Whilst conducting a search of the area police heard an audible alarm coming from Spaceland Newsagency, John Street, Salisbury (this shop is located approximately 100 metres from Home Hardware).  Police attended this shop and located a smashed 2.5m x 2.5m shopfront window.  Police observed a male standing on the corner of Church Street and the western end of the Spaceland Arcade car park.  Police had a conversation with this male adult, now known to the police as the defendant.  Whilst speaking to the defendant police observed that he had a small laceration on his right ring finger just above the knuckle.  Police also observed that the had glass fragments on the bottom of his left shoe.  Police had a further conversation with the defendant  who made admissions to smashing the shop window with intent to steal some property.  The defendant was arrested and conveyed to the Salisbury Police Station where a video and audio record of interview was conducted.  The defendant was subsequently charged with shopbreak with intent.  The defendant was then conveyed to the Elizabeth Police Station where he was searched, charged and placed in a police cell.

The defendant stated to police that he was off his face on drugs, saw a lizard statue in the shop and wanted it.  He stated that he kicked the window in with his left foot.  He stated he didn't get in but was intent to get the statue."

The appellant is only 19 years of age, but he had appeared before the Children's Court at Elizabeth on 6 April 1996, and although convictions were not recorded, he was fined in relation to two offences of dishonesty.

Mr Vadasz appeared for the appellant both before the learned magistrate and before me.  He put a number of mitigating factors which included the following:

1. The appellant's age and relative lack of antecedents.

1. The appellant was one of five children and had never known his father.  He came from an underprivileged and dysfunctional background.

1. The appellant left school in Year Nine.  He is not literate.

1. The appellant has had a number of short term jobs since leaving school and these occupied approximately twelve months in all.  They were all of manual nature.

1. The appellant's addiction to prescription benzodiazepams commenced when he was aged about fourteen and developed into a major problem when he turned about sixteen.

1. In particular, the problem commenced when the appellant's mother started a relationship with a man who had a violent criminal history, including a conviction for manslaughter.  This person abused the appellant, who the Court could see was small in stature and weight for his age.

(vii)  The appellant's mother was in Court and she could verify that she had terminated a relationship some time ago and that her son has now returned to live at home with her.

(vii)  On my instructions, confirmed by his mother's view, the appellant had ceased to take Rohypnol after he was released on bail in this matter, having spent thirteen or fourteen days in custody.

1. The appellant's time in custody had a very salutary effect on him - he was significantly smaller than other prisoners and intimidated by his surroundings.

1. The appellant was grossly affected by pills at the time of the break and enter with intent offence and has little memory of the offence.  He is contrite and remorseful about his behaviour.  He was still under the influence of the drug when he was released on bail and committed the illegal interference offence.

(xi)Although the appellant was on unemployment benefits, he was prepared to make restitution."

It can perhaps be said that nine months, having regard to the overall sentencing package, was a severe term, but it must be remembered that his Honour did suspend that term of imprisonment and, in the end, notwithstanding the material that has been put to me, I am not persuaded in all the circumstances it was manifestly excessive. 

The appeal will be dismissed.  There will be no order for costs.