Christian Francois Rincon v SA Police No. 4192 Judgment No. SCGRG 93/1551 Number of Pages 4 Criminal Law Sentencing

[1993] SASC 4192

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law - sentencing - Appeal against sentence imposed in Magistrates Court of 18 months imprisonment, with an extension of an existing non-parole period by 11 months, on an admitted charge of housebreaking and larceny involving goods to the value of over $2,500 on a young man with an extensive record of petty offending - held not manifestly excessive. R v Halse (1985) 38 SASR 594, considered.

HRNG ADELAIDE, 22 September 1993 #DATE 22:9:1993
Counsel for appellant:     Mr N. Vadasz
Solicitors for appellant:    Nicholas Vadasz
Counsel for respondent:     Ms M. Clements
Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal dismissed.

JUDGE1 PERRY J The appellant appeals against the sentence imposed upon him in the Magistrates Court at Murray Bridge on an admitted charge that on 12 October 1992, at Hamley Bridge, he broke and entered a dwelling house and stole a number of items, including a colour TV set, two motor cycles and a microwave oven, valued at $2,674, the property of the owner of the house. 2. The appellant was represented by counsel at the hearing in the Magistrates Court. The learned Magistrate was informed by the assistant police prosecutor, who represented the informant, that the house in question was broken into through a rear sliding door between the hours of 8.00 a.m. and 4.20 p.m. The defendant's fingerprints were found at the scene. I assume that it was through this that the appellant was apprehended. 3. The prosecutor sought payment of compensation in the several sums of $2,234 to the insurance company and $340 to the owner of the house. 4. Counsel for the appellant intimated that he was born on 6 February 1970 and had formed a relationship, and indeed had fathered a son, at an early age in that he was then 19 years of age and his defacto 16 years of age. His defacto wife left him in September 1992, although afterwards she returned. He found the last few months of 1992 difficult. 5. The circumstances of an earlier offence of threatening life were explained to the learned Magistrate. These resulted in a sentence imposed in this Court on 12 February 1993 by Prior J, that being a sentence of 24 months imprisonment with a non-parole period of 16 months. 6. It appears that the appellant appeared in another Magistrates Court in April 1992 on a charge of housebreaking and larceny, which was an offence which had been committed in December 1992. He was then sentenced to nine months imprisonment with a non-parole period of three months, resulting in a total head sentence of 33 months with a non-parole period of 19 months. 7. The learned Magistrate in the case at bar had before him a copy of the antecedent report of the appellant, which indicated that he had a long history of offending stretching back to 1987. The offences committed since then include a number of charges of larceny, a charge of shopbreaking and entering and larceny, receiving, and other offences involving dishonesty or violence. 8. It is true, as Mr Vadasz who represented the appellant on the hearing of the appeal before me pointed out, that until the sentence imposed by Prior J in February 1993, it does not appear that the appellant had previously been made the subject of a custodial term of imprisonment. 9. After hearing submissions, the learned sentencing Magistrate imposed a sentence of imprisonment of 18 months to commence at the expiration of the sentence which the appellant was then serving. He went on to extend the non-parole period to 30 months, which was an additional 11 months over the non-parole period which previously applied. The head sentence of 18 months brought a total head sentence of 51 months to which the non-parole period of 30 months applies. 10. In addition, the learned Magistrate ordered the appellant to pay compensation within three years in the two amounts to which I have already referred. 11. Mr Vadasz argued only one ground of appeal and that is that the sentence imposed was manifestly excessive. He submitted that 18 months was an excessive sentence of imprisonment standing alone, and that the totality of the head sentence, allowing for the cumulation of sentences totalling 51 months, was manifestly excessive. 12. He submitted that the sentence of 18 months imprisonment did not compare favourably with the sentence of nine months imposed in April for a similar offence, and he put it that the disparity indicated that the latter sentence was excessive. He further contended that the appellant had been disadvantaged by the delay in commencing the proceedings which led to the sentence under appeal. 13. Those proceedings were instituted by an information issued out of the Court below on 22 June 1993. At that stage, the appellant apparently was close to qualifying for home detention. The track which he was following which might have led to his release from prison before now, or about now, was interrupted by the imposition of the sentence in question, or at least by the laying of the charge with the result that he did not continue to become eligible for release when he had expected. 14. In my opinion, the disturbance of the appellant's path leading to release from the earlier sentences does not, in this case, operate as a mitigating factor. 15. The learned Magistrate delivered brief remarks on sentence in which he noted the defendant's prior history "which includes prior convictions for similar offending" dating back to 1991 and larceny matters dating back to 1987. 16. Addressing the defendant he said: "What you have to understand is that you do not interfere with property that does not belong to you." 17. While it is true that the appellant is a young man with family commitments, the fact remains that he has an unfortunately long record of petty offending. The offence now in question was relatively serious in that the total value of the property involved was not insubstantial. I do not think that the comparison with the sentence imposed in April this year indicates that the sentence under review is necessarily excessive. It seems to me that the disparity may well be explained by the fact that the sentence of nine months imposed in April was a modest, if not lenient, sentence for a housebreak and larceny offence committed by this appellant. 18. Mr Vadasz referred to the decision of the Court of Criminal Appeal in R v Halse (1985) 38 SASR 594. I do not pause to cite the well known passage in the judgment of King CJ in that case at 595, in which his Honour indicates a tariff to which regard has been had since that case, for offences of this kind. Mr Vadasz, at one stage of the argument, suggested that the sentence imposed was close to the ceiling of the power of the Magistrates Court to imprison, for this offence, of up to two years only. But the relative comparison is not with respect to the jurisdictional ceiling, but with the statutory maximum, which is eight years. 19. In my opinion, allowing for everything which Mr Vadasz has put and including the matters referred to in the affidavit of the appellant which was received by consent, the appellant has not discharged the onus of demonstrating that the sentence imposed, either considered alone or in conjunction with the previous sentences upon which it was accumulated, was manifestly excessive. 20. In my opinion, the sentence was well within a proper exercise of the sentencing discretion exercised by the learned Magistrate. 21. The appeal is dismissed.