CHALACAS v POLICE

[2010] SASC 257

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

CHALACAS v POLICE

[2010] SASC 257

Judgment of The Honourable Justice David

20 August 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence - appellant pleaded guilty to two counts of dishonestly take property without owner's consent, one count of drive or use a motor vehicle without owner's consent and one count of drive whilst disqualified - magistrate imposed one sentence of four months imprisonment unsuspended and disqualified appellant from holding or obtaining a driver's licence for 15 months - appeal based on failure to suspend term of imprisonment only - whether magistrate gave adequate consideration to appellant's mental issues - whether magistrate gave adequate consideration to appellant's rehabilitation.

Held:  Appeal dismissed - magistrate properly considered appellant's mental illness based on information available - magistrate properly considered appellant's rehabilitation and attitude towards further rehabilitation.

Criminal Law Consolidation Act 1935 (SA) s 86A, s 134; Motor Vehicles Act 1959 (SA) s 91; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Wiskich (2000) 207 LSJS 431, applied.

CHALACAS v POLICE
[2010] SASC 257

Magistrates Appeals:  Criminal

DAVID J.

Introduction

1. This is an appeal against sentence.

2. The appellant pleaded guilty in the Magistrates Court to a number of offences, namely:

   ·driving or using a motor vehicle without consent, contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA);

   ·two counts of dishonestly taking property without consent, contrary to s 134 of the Criminal Law Consolidation Act; and

   ·driving whilst disqualified, contrary to s 91 of the Motor Vehicles Act 1959 (SA).

3. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the magistrate sentenced the appellant to a term of four months imprisonment. He found that there was no good reason to suspend that term of imprisonment. Further, the appellant was disqualified from holding or obtaining a driver’s licence for 15 months. The appellant appeals against the decision of the magistrate not to suspend the term of imprisonment of four months. There is no appeal against the length of the sentence or the disqualification.

4. The basis of fact upon which the magistrate imposed the appellant’s sentence was not in dispute. Nor was it in dispute that he was previously convicted of the offence of illegal use on 20 October 2008. The basis of the present appeal is that the magistrate erred in failing to give adequate weight to the appellant’s rehabilitation and his psychiatric condition at the time of the offending.

5. At sentencing submissions the magistrate ordered and was provided with a pre‑sentence report. In that report the appellant told the author that at the time of the offending he was suffering from mental problems, including schizophrenia and a bi‑polar condition for which he had taken medications. He also informed the author that he had been on a binge drinking session, and had been taking methamphetamine, cocaine and cannabis, and that that affected his judgment. He also told the author of the report that when he takes drugs he does not know what he is doing. The magistrate did not have any other report or information supporting the appellant’s description of his mental health problems.

6. On the topic of the appellant’s mental health at the time of the offending, the magistrate said in his reasons:

   I have taken into consideration the content of the PSR and in particular the suggestion that the defendant was affected by alcohol and drugs at the time of his offending. I accept, without any proof having been tendered that he has some mental health issues. However, there is nothing before me to suggest that at the time of his offending the defendant did not know that what he was doing was wrong.

   I accept that Mr Richards has done as much as he can to provide me with relevant information about the defendant. He readily concedes that he has found it difficult to obtain further information or instructions.

   The issue of the defendant's mental health obviously raises issues that are relevant to sentence. I must take into consideration the provisions of s 19C of the Sentencing Act as well as the provisions of s 10. I also have regard to the following passage from the judgment of Martin J in Wiskich:[1]

   “The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.”

   One of the difficulties that I have in this matter is that I have no expert opinion to link the defendant’s mental health to his offending. The PSR suggests that the defendant admitted to having been on a binge session involving various prohibited substances at the time of his offending. He told the writer that his intake of drugs affected his mental health. He also appears to have admitted that he was well aware that drug ingestion made him do things he wouldn’t perhaps normally do. I also note that there is a reference in the report to the defendant taking drugs at an early age which had the effect of frightening his parents.

   It was for the purpose of considering Mr Richard’s submissions that I adjourned this matter for 24 hours. I have formed the opinion that a sentence of imprisonment is appropriate in this case. The defendant’s offending was serious and comes upon a previous conviction for illegal use in 2008. Whilst he is not here to be sentenced again, I think I can take the view that he failed to learn from his previous experience. I have given the issue of deterrence consideration and in the absence of any further detailed information I am not satisfied that the defendant did not appreciate the gravity and seriousness of his offending at the relevant time. The defendant was aware of the effect that drugs had upon his behaviour. Notwithstanding he has deliberately gone on a binge to use his words and has committed further offences. His actions provide an explanation but they do not provide an excuse in my opinion.

   [1]    R v Wiskich (2000) 207 LSJS 431 at 457-8.

7. Further on he said:

   I take into consideration that the defendant is still a relatively young man. I note that he can be provided with employment by a family friend. I note that he apparently receives good support from his mother and family. I take into consideration that he has some mental health issues although the extent of those issues is unclear as is the issue of his present treatment. I also note that he has apparently given up his reliance on prohibited substances. To a large extent I take all of that information on face value and simply from information provided by the defendant to the report writer.

   On the other hand I note his remarks to the report writer about his reluctance to involve himself in appropriate rehabilitation programs. He apparently believes that he does not need any further assistance. Given his attitude it appears unlikely that he will benefit from any order imposing supervision. That in itself of course is no reason why I should not suspend the sentence. However, combined with that factor is the issue of the seriousness of the offending and the fact that this is a second offence committed a relatively short period of time after another offence of the same kind. Parliament has made clear that for a second offence, a minimum of three months imprisonment is called for. In all of the circumstances I am not satisfied that suspension is appropriate.

8. Mr Richards of counsel now argues that inadequate consideration has been given to the appellant’s mental condition. I disagree. In my view, the magistrate has dealt with the matter carefully, bearing in mind that he has not had the advantage of any further detail, other than a pre‑sentence report which relied upon material provided by the appellant. Mr Richards also argues that inadequate consideration was given to the question of the appellant’s possible rehabilitation, in particular, the fact that the magistrate appeared influenced by what the appellant said to the author of the pre‑sentence report about not needing or wanting any further assistance. In my view, the magistrate was entitled to take into account the appellant’s express views on the matter, and come to the conclusion that he was unlikely to benefit from an order that he attend rehabilitation programs. It is to be noted however that the magistrate concluded that that of itself was no reason why the sentence should not be suspended. That was made clear in his reasons. I find the magistrate addressed himself appropriately on all relevant matters, and I find there is no basis for interfering with the discretion not to suspend.

   Conclusion

9. I dismiss the appeal.