Cherry v Police - [2023] SASC 158

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
CHERRY v POLICE
[2023] SASC 158
Judgment of the Honourable Justice Kimber
2 November 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant was sentenced on 11 May 2023 for an offence of Breach of Bail contrary to s 17(1) of the Bail Act 1985 (SA). The appellant cut off his electronic monitoring device. The Magistrate identified a starting point of nine months’ imprisonment and after a reduction of 40 per cent for the guilty plea, imposed a sentence of five months and 12 days. This sentence was made cumulative upon other sentences imposed at the same time and upon unexpired parole.
The appellant appeals the sentence of five months and 12 days on the basis of a failure to give adequate reasons with respect to the totality principle and manifest excess. The appeal is out of time.
Held:
1.An extension of time is granted.
2.A review of the sentencing remarks does not suggest any error with respect to adequate reasons and the totality principle.

3. The appeal is allowed on the basis the sentence was manifestly excessive.
4. The appellant is resentenced to three months.
5.The above sentence is cumulative upon other sentences imposed by the Magistrate on 11 May 2023 and cumulative upon unexpired parole.
6.The effective total head sentence, including unexpired parole, is three years and four days. With respect to that effective total head sentence, a non-parole period of 18 months is fixed.

7. The effective total head sentence and non-parole period commence on 6 January 2023.
Bail Act 1985 (SA) s 17(1), referred to.
R v Lutz (2014) 121 SASR 144; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; Hackett v R [2021] SASCA 32, applied.

CHERRY v POLICE
[2023] SASC 158
Magistrates Appeal: Criminal
KIMBER J:

This is an appeal against a sentence imposed by a Magistrate for breach of bail contrary to s 17(1) of the Bail Act 1985 (SA) (the offence).
The offence was one of several offences for which the appellant was sentenced by the Magistrate on 11 May 2023. The maximum penalty for the offence was a fine of $10 000 or imprisonment for two years. The Magistrate identified a starting point of nine months for the offence and imposed a sentence of five months and 12 days after a reduction of 40 per cent for the guilty plea. The Magistrate accumulated the sentences he imposed, resulting in a total sentence of one year, three months and nine days. That sentence was made cumulative upon unexpired parole of one year, 11 months and seven days, with the outcome of a total head sentence of three years, two months and 16 days. A non‑parole period of 20 months was fixed. Both the head sentence and the non‑parole period were ordered to commence on 6 January 2023.
For the reasons which follow, I allow the appeal, re‑sentence the appellant for the offence to imprisonment for three months and fix a new non‑parole period.
Grounds of appeal
The appeal is out of time. The Magistrate imposed sentence on 11 May 2023 and the Notice of Appeal was not filed until 19 July 2023. The reasons for the delay were set out in an affidavit from the solicitor for the appellant. Properly, the respondent did not oppose an extension of time and that was granted during the hearing of the appeal.
There are two grounds of appeal set out in the Notice of Appeal. However, as drafted and argued, the appellant has three contentions:
1.The Magistrate failed to give proper weight to a mitigating circumstance for the offence (the first aspect of Ground 1);
2.The sentence for the offence was manifestly excessive (the second aspect of Ground 1); and
3.The Magistrate failed to give adequate reasons for not applying the totality principle (Ground 2).
The offending
It is necessary to set out some of the circumstances of the offending dealt with by the Magistrate.
The breach of bail offence the subject of the appeal was committed on 27 September 2022. The appellant had been released on home detention bail on 14 September 2022. On 27 September 2022, the appellant committed the offence by cutting off his home detention device. The appellant remained at large until arrested for other offending on 6 January 2023.
The other offences before the Magistrate were:
·Driving disqualified on 10 April 2022 with respect to which a sentence of two months and 12 days was imposed.
·Driving unregistered on 8 June 2022 with respect to which there was a conviction without further penalty.
·Aggravated drive disqualified to escape police pursuit on 8 June 2022 with respect to which a sentence of six months and nine days was imposed.
·Breach of bail on 23 September 2022. The appellant had tested positive to amphetamine and methamphetamine. The appellant was convicted without further penalty given time spent in custody.
·Two counts of theft on 6 December 2022 with respect to which a single penalty of 18 days was imposed.
·Unlawful possession on 6 January 2023 with respect to which a sentence of 18 days was imposed.
·Stating false personal details on 6 January 2023 with respect to which there was a conviction without further penalty.
Parole and prior offences
The offences dealt with by the Magistrate were committed while the appellant was on parole.
On 5 March 2018, the appellant was sentenced for trafficking and other drug‑related offences in the District Court. A head sentence of six years and 13 days, with a non‑parole period of one year and nine months was imposed to commence on the day of sentence.
The breach of bail offences committed on 23 September 2022 and 27 September 2022 were not the first occasions the appellant had committed that offence. The appellant had committed that offence on five previous occasions on 27 August 2010, 14 November 2010, 1 December 2010, 29 December 2010 and 19 January 2011. With respect to the offence on 27 August 2010, a fine of $270 was imposed. With respect to the remaining four offences, and bearing in mind time in custody, convictions were imposed without further penalty. The appellant had also committed driving disqualified offences on 18 August 2007 and 11 October 2007, and a theft on 22 October 2010.
Personal circumstances
The appellant is 40 years of age.
The Magistrate had a pre‑sentence report to which he made extensive reference in his sentencing remarks. I will only set out some aspects. The appellant has had a problem with methamphetamine for some time, having first used that drug almost fifteen years ago. Since being released on parole in December 2019, the appellant had breached his parole by using drugs more than once. The appellant was assessed as being at high risk of re‑offending unless able to address his criminogenic needs.
Concerns were expressed in the pre‑sentence report about whether the respondent was resistant to change given comments made by him which indicated a less than complete commitment to abstinence from drugs. The report set out that while on parole, the appellant had been provided with several opportunities to address his criminogenic needs but that he had shown minimal effort to make positive changes and was not considered amenable to community‑based supervision orders at the time of the report.
There was evidence before the Magistrate that work would be available to the appellant upon release from custody. Among the submissions before the Magistrate was that there was a period during which the appellant had been employed for over two decades; that the appellant had engaged in courses in custody; that he had developed insight into the connection between his drug use, association with negative peers and offending; and was remorseful.
Ground 1—Failure to give proper weight to a matter in mitigation
I turn to the first aspect of Ground 1.
This aspect of Ground 1 relates to the reason put by the appellant in submissions for the commission of the offence. Before the Magistrate, the appellant submitted that he wanted to turn his life around and break from his drug use. The appellant submitted he had removed his home detention bracelet because he was living with a drug associate and wanted to get away from that environment.
It is necessary to properly understand the contention of the appellant. While Ground 1, as set out in the Notice of Appeal, might be read as contending that the Magistrate failed to sentence on the basis put by the appellant, that was not the complaint advanced on the hearing of the appeal.
Against the background of the Magistrate setting out the submission in his sentencing remarks and not having stated he doubted its veracity, the submissions advanced by the appellant were as follows. In his written submissions, it was put that the Magistrate had failed to ‘properly consider’ the reason given for the commission of the offence. In his oral submissions, it was put that the Magistrate had failed to give the reason for the offence sufficient weight.
This aspect of Ground 1 must be rejected. That a sentencing court failed to give sufficient, adequate or proper weight to a relevant sentencing consideration is not, of itself, capable of enlivening the authority of an appeal court to intervene.[1]
[1] R v Lutz (2014) 121 SASR 144, 154 [47].
Ground 1 — The sentence was manifestly excessive
I turn to the second aspect of Ground 1.
The appellant submitted the sentence of five months and 12 days, after a reduction of 40 per cent, is manifestly excessive in circumstances where: the offence was committed for the reason put in submissions; and the Magistrate acknowledged the appellant had accepted that he found himself getting into trouble when he associated with drug users and understood that he needed to show that he could do well when not under the influence of drugs.
Consideration
The contention a sentence is manifestly excessive is a complaint the sentence was unreasonable or plainly unjust such that it can be inferred the outcome has been attended by error.[2] It is not enough that the appellate court would have imposed a different sentence.[3] Rather, the sentence must be ‘outside the permissible range of sentences for the offender and the offence’.[4]
[2] House v The King (1936) 55 CLR 499, 504–505.
[3] Ibid.
[4] Kentwell v The Queen (2014) 252 CLR 601, 615 [35].
The imposition of a just sentence which takes account of all relevant considerations is an exercise of judicial discretion. Sentencing Judges and Magistrates ‘are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’.[5]
[5] Hackett v R [2021] SASCA 32, [8].
In submitting the sentence was not manifestly excessive, the respondent emphasised the above principles. The respondent also emphasised that the removal of a home detention device should be regarded as a serious example of the offence; the offence was committed only two weeks after entry into the bail agreement; the appellant remained at large for almost four months and did not surrender; the importance of general and personal deterrence; and that the appellant was on parole.
Notwithstanding the force of the submissions of the respondent, the absence of any sentencing standard for the offence, and that the Magistrate had a broad discretion, I am satisfied the sentence was manifestly excessive. It must be accepted that the appellant had a poor history of breaches of bail and so the basis for leniency was reduced. However, apart from the other breach of bail dealt with by the Magistrate, those offences had been committed more than a decade ago and, other than time spent in custody, had not attracted a sentence of imprisonment. I find that the sentence imposed was outside the permissible range of sentences available to be imposed for this offence and this offender.
I allow the appeal on Ground 1. It will be necessary to re-sentence the appellant.
Ground 2—Failure to give adequate reasons for not applying the totality principle
As the appellant must be re-sentenced, it is not strictly necessary to consider Ground 2.
Nonetheless, I make the following observations. First, the sentencing remarks make plain that the Magistrate both understood the principle of totality and considered whether it should be applied. Second, in this case, reference to the totality principle was not necessary.
Re-sentencing
In re‑sentencing the appellant, I recognise the maximum penalty for the offence.
I accept the submissions of the respondent summarised earlier which outlines the seriousness of the offence; the importance of personal and general deterrence and that the offence was committed on parole. The room for leniency is limited given the prior offences for breach of bail. I do not regard the reason given for the removal of the home detention device as a matter in mitigation. The appellant did not submit that he had attempted to move address while remaining subject to bail. The appellant did not engage with his community corrections officer or surrender. He remained at large for almost four months. The giving of false details on the day of his arrest is consistent with an attempt to remain at large.
I adopt a starting point of five months. The appellant is entitled to a reduction of up to 40 per cent for his plea of guilty. There are reasons not to give that reduction. The appellant remained at large for the period set out above and did not surrender. The plea reflects an acceptance of the inevitable. However, as submissions were not directed to this on the hearing of the appeal, I will adopt the same approach as the Magistrate. I fix a sentence of three months. I make that sentence cumulative upon the other sentences of imprisonment imposed by the Magistrate.
The above results in an effective head sentence of one year and 27 days. That period is to be served cumulatively upon unexpired parole of one year, 11 months, and seven days. That then results in a total head sentence of three years and four days to commence on 6 January 2023.
A new non‑parole period must be fixed. Taking account of the guilty pleas of the appellant; his personal circumstances as set out earlier and the importance of personal deterrence, I fix a non‑parole period of 18 months. That non-parole will also commence on 6 January 2023. The orders of the Magistrate with respect to fees and levies and the licence disqualification for two years from the date of the release of the appellant remain in place.
Orders
1.The appeal is allowed on Ground 1.
2.The sentence imposed for the breach of bail committed on 27 September 2022 is quashed. For that offence, the appellant is re‑sentenced to imprisonment for three months.
3.The above sentence is cumulative upon other sentences imposed by the Magistrate on 11 May 2023 and cumulative upon unexpired parole.
4.The effective total head sentence, including unexpired parole, is three years and four days. With respect to that effective total head sentence, a non‑parole period of 18 months is fixed.
5.The effective total head sentence and non‑parole period commence on 6 January 2023.
6.I will hear the parties as to any further orders.