Clancy v Police No. Scgrg-98-618 Judgment No. S6718

[1998] SASC 6718

THURSDAY, 11 JUNE 1998

CLANCY v POLICE

Magistrates Appeal
Prior J
         The applicant seeks to appeal against sentences imposed in the Elizabeth Magistrates Court on 13 March 1998.  There was a delay in the institution of this appeal.  The explanation is that the orders made by the magistrate were said to be unclear to the applicant's solicitor at the time of sentencing and that Legal Aid has only recently been obtained.  With some hesitation I extended the time within which to appeal to enable the appeal to be dealt with on its merits. 

The appellant pleaded guilty to damaging property and failing to comply with a bail agreement.  He also admitted to being in breach of conditions attaching to a bond acknowledged by him on 14 August 1996.  The appellant was then convicted of breaking and entering a building to commit an offence and possessing a prohibited substance for sale.  He was then sentenced to eight months imprisonment.  That sentence was suspended upon the appellant entering into a bond in the sum of $200 to be of good behaviour for a period of 18 months and obey directions of his probation officer. 
The magistrate was told that the breach of s85 of the Criminal Law Consolidation Act 1935 occurred on 29 May 1996 when as a result of an argument between the appellant and his former de facto a fight broke out with the appellant climbing up onto the woman's vehicle and walking over the boot, roof and bonnet, causing damage alleged to have been of the order of $1000. The magistrate ultimately made a compensation order. The amount ordered was $250. It appears that there was no dispute from the prosecution before the magistrate that the amount of damage first alleged was more than was actually the case. There was no dispute before the magistrate that the incident was related to a relationship the applicant then had between himself and his former de facto's sister. The number of persons involved and the circumstances themselves were particularised before me in the affidavit of the prosecutor. There was further reference to the circumstances in reports before the magistrate. I do not pause to spell out those further facts. Suffice to say that there were some aggravating circumstances associated with this event that cannot be overlooked in the context of the magistrate’s sentence.
With respect to the second matter admitted, the breach of bail, the facts were that on 17 October 1997 the appellant was bailed from the Elizabeth Magistrates Court and placed on home detention.  The admitted facts were that the appellant was not at the address at which he was detained on two occasions in November 1997.  The second occasion was some twelve days after the first.  The information disclosed to police was that the appellant was not at the address he was supposed to have been at from 3 to 15 November. 
Submissions were made on the appellant's behalf by counsel.  The magistrate was requested to have regard to the fact that the appellant had been in custody from 8 January 1998.  Pre-sentence and psychiatric reports were considered.  The magistrate found the breach of bond proved, revoked the suspension of the sentence of eight months and directed that a period from 20 June 1997 to 17 October 1997 be treated as part of the sentence. 
As for the property damage matter, the magistrate imposed a sentence of five months imprisonment cumulative upon the sentence carried into effect by the revocation of the order of suspension.  There was no further penalty imposed for the breach of bail given that some time had been spent in custody. 
In his sentencing remarks the magistrate properly referred to the appellant having an appalling record for breaches of bail and a very bad record for failing to observe probation and other orders.  He acknowledged that the psychiatric report was optimistic and then observed that the periods the appellant had spent in custody were fundamentally a result of his own behaviour and failure to observe bail conditions.  The magistrate also observed that the appellant was a person who had many opportunities to improve his behaviour but had failed to do so.  The magistrate then said:
"The question really of difficulty is the fact that you've spent four months or thereabouts in custody from June to October and asking for credit for that and credit for the period from January until now."
The magistrate said he thought it was very difficult to give credit for all of that period particularly because the appellant's presence in custody was a direct result of his own breach of bail in one instance and for a failure to observe bail in the other.  The magistrate was referring to bail given to the appellant by another magistrate in November 1996, observing that the appellant absconded then when he was due to appear in court in March 1997. 
After seeking clarification upon the actual period the appellant had spent in custody, the magistrate proceeded to say that having regard to the amount of time spent in custody from 8 January until the date of the sentences he would order that there be no penalty imposed upon the appellant's conviction for breach of bail.  The magistrate then referred to the revocation of the suspension of the sentence of eight months.  As to that the magistrate said it was his view that the appellant should have credit for the four months or thereabouts spent in custody from 20 June until 17 October. 
The magistrate referred to s58 of the Criminal Law (Sentencing) Act 1988. Paragraph (b) of subs(4) of that section permits a court revoking the suspension of a sentence of imprisonment to direct that time spent in custody pending determination of proceedings for breach of condition be counted as part of the term of the suspended sentence. The magistrate directed that the period from 20 June 1997 to 17 October be counted as part of the term of the suspended sentence and added that he required the appellant to serve an additional four months `to make up the eight months'.
As to the property damage charge the magistrate said that matter called for a sentence of imprisonment. He said it should be served cumulatively. He convicted the appellant on this charge and sentenced him to five months imprisonment. The magistrate then said that a question arose as to whether the appellant was a person referred to in s32 of the Criminal Law (Sentencing) Act and whether there was a duty imposed on the court to fix or extend a non-parole period. In the magistrate's opinion the appellant was a person liable to serve a total period of imprisonment of less than one year. On that basis the magistrate said he did not have power to fix a non-parole period. Acknowledging that others may have a different opinion, the magistrate said that if he were obliged to do so the non-parole period he would fix would be one of nine months.
The grounds of appeal sought to be pursued were that the property damage sentence is manifestly excessive and that a non-parole period should have been fixed. The appellant is incorrect in the submission put in the outline of submissions that (5)(a) of s32 of the Criminal Law (Sentencing) Act confers upon a court "a discretion as to whether to fix a non-parole period or not where a person is liable to serve a total period of imprisonment of less than one year". The accepted and proper reading of the provisions of s32(1) and (5) is that a court cannot fix a non-parole period where the total period of imprisonment liable to be served is less than one year. The magistrate was correct in finding that the appellant was liable to serve a total period of less than one year and that there was therefore no power to fix a non-parole period. On the hearing of the appeal counsel did not press this ground of appeal.
There is more in the submission that the sentence imposed for damaging property was manifestly excessive than first meets the eye.  In the end however, I am not persuaded that it is appropriate to intervene.  I think the sentence can certainly be described as severe.  I do not think it is properly identified as manifestly excessive against the appellant's extensive criminal history, including four previous convictions for the offence of damaging property, as well as convictions for offences of assault and assault occasioning actual bodily harm.  That apart and most significantly, the total sentencing package for all of the matters then before the court could not be described as manifestly excessive.  I therefore dismiss the appeal.