CLOTHIER v Police - [2015] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CLOTHIER v POLICE
[2015] SASC 143
Judgment of The Honourable Justice Vanstone
22 September 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED - RECEIVING - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence – two counts of unlawful possession of property – whether sentence manifestly excessive – whether magistrate adequately explained why sentence of imprisonment (suspended except for one month) was necessary – whether sentence should have been wholly suspended.
Held: appeal dismissed.
Summary Offences Act 1953 (SA) s 41(1), s 41(2); Criminal Law (Sentencing) Act 1988 (SA) s 11(1)(a)(iii), s 11(1)(a)(iv), s 11(1), s 18A, referred to.
R v McInerney (1986) 42 SASR 111, applied.

CLOTHIER v POLICE
[2015] SASC 143
Magistrates Appeal
Criminal

VANSTONE J: This is an application for permission to appeal, slightly out of time, against a sentence imposed by a Magistrate.
The appellant was charged with two counts of unlawful possession of personal property contrary to s 41(1) of the Summary Offences Act 1953 (SA). Both offences took place in 2011. Count 1 involved the appellant’s possession of a fertiliser spreader, a tandem trailer and a licence plate, and count 2, a cement mixer. The stolen property was located by the police during a search of the appellant’s address on 22 September 2011. Due primarily to repeated failures by the appellant to attend court for scheduled hearings, the matter stagnated in the Magistrates Court for over three years. Finally, on 10 June 2015, following the appellant’s non-appearance and arrest of a bench warrant, the appellant entered pleas of guilty to the two charges.
Utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the magistrate commenced with a period of about six months imprisonment. That period was reduced to a sentence of five months on account of the appellant’s guilty pleas. The magistrate then suspended four months of that term upon the appellant entering into a $200 bond to be of good behaviour for a period of 12 months. The sentence was backdated to commence on the day of the appellant’s arrest, being 13 May 2015. That meant that the appellant would be released almost immediately.
At the outset of the appeal the appellant sought leave to file an amended notice of appeal. The amended notice contains three grounds: the sentence imposed is manifestly excessive; the magistrate erred by failing to consider other sentencing options before imposing a term of imprisonment; and the magistrate erred by failing to wholly suspend the sentence.
Background of the offending
In August 2011 police began making enquiries following various complaints made to them of stolen equipment in the country towns of Monarto and Nairne. One such complaint involved the theft of a fertiliser spreader in around April or May of 2008. The spreader was valued at $10,500 and had been stolen from a residential property in Monarto. Another complaint involved the theft of a petrol-driven cement mixer in January or February of 2011. The mixer was valued at $1,500 and had been stolen from Inghams’ chicken farm in Nairne. A third complaint involved a trailer and licence plate missing from the same business, but this time from the company’s farm in Monarto. The theft of the trailer, valued at $2,000, occurred in April 2007.
The enquiries made by police led them to the appellant’s home at Monarto. The police attended there on 25 August 2011 and spoke with him regarding the stolen fertiliser spreader, which they believed to be at his property. The appellant showed the police a spreader that he possessed, but provided a receipt to suggest that he had purchased it three years earlier from a Mr Jones at Lameroo, for $1,000. The police made further enquiries which indicated the appellant’s explanation was false.
The police then attended at the appellant’s residence for a second time on the morning of 22 September 2015. On this occasion the police executed a general search warrant. They confirmed that the spreader was the one stolen in 2008 and they located the other stolen items. The appellant was arrested and charged with one count of theft and one count of unlawful possession.
An interview with the appellant was conducted. In that interview the appellant reiterated that he had bought the fertiliser spreader from a man by the name of Jones and was unaware that it was stolen property. With respect to the tandem trailer, he said that he had made it himself a few years ago. (That was untrue as the trailer had been stolen in 2007. At that time its licence plate was attached.) As to the licence plate, he stated that he did not know where it had come from, but that it could have been left by the previous owners of the property when he moved in six months before. Finally, regarding the cement mixer, the appellant said that he had taken it from a commercial chicken farm with the permission of the farm’s manager and that, although he had planned to return it at some stage, he simply had not got around to doing so. (In fact it had been taken without permission from Inghams’ Nairne chicken farm in 2011.)
The matter was first listed in the Murray Bridge Magistrates Court on 23 January 2012. Between January 2012 and March 2015 the complaint was called on a total of 19 times. Many of those hearings did not proceed on account of the appellant’s failure to attend. Following the failure to attend court on 23 March 2015, a warrant was issued for the appellant’s arrest. He was arrested and taken into custody on 13 May 2015.
During a hearing on 9 June 2015 the appellant’s counsel indicated that the appellant would enter pleas of guilty to two charges of unlawful possession in satisfaction of the charges. As a result the prosecution filed a new complaint. On 10 June 2015 the appellant entered his guilty pleas to those two counts. The appellant was sentenced on the same day.
The Magistrate’s sentencing remarks
In sentencing the magistrate had regard to the fact that the appellant’s pleas of guilty were entered on the basis that he was unable to prove that he obtained possession of the items honestly: s 41(2) of the Summary Offences Act.
The magistrate took notice of the appellant’s personal circumstances as follows:
Significantly, [the appellant] doesn’t have any previous history for offending of a dishonest nature and I need to reflect that in the overall approach to penalty as well.
He is a 40 year old man. He is a self-employed truck driver. He is in a relationship and has a couple of children. He normally resides at Flagstaff Hill with his partner. He has children from a previous relationship and is supportive of them from a financial point of view. He is able to resume his employment as a local and interstate truck driver immediately upon his release.
The magistrate then had regard to a submission by counsel that the time already served by the appellant, which at that point stood at 29 days, was sufficient penalty. The magistrate indicated that whilst that argument had weight, his sentence would require a little more time in custody.
Arguments on appeal
In support of his argument that the sentence was manifestly excessive, Mr Andrew Ey, for the appellant, argued that the starting point of six months was simply too much, having regard to the maximum penalty of a fine of $10,000 or imprisonment for two years, or both, provided in s 41(1) of the Summary Offences Act. He argued that the nature of the items and their value was not such as to render the offending at the higher end of the scale of such offences. He submitted that the magistrate had depreciated the significance of the amendment to the charges made by the prosecution before the pleas of guilty, in which the charges were downgraded from unlawful possession and theft to the two counts of unlawful possession. The magistrate described the alteration as “a slight amendment”.
Mr Ey also argued that the magistrate erred in “failing to consider and/or state other sentencing options before imposing a sentence of imprisonment under s 11(a)(iv) of the Sentencing Act”. Counsel submitted that, particularly in circumstances where not all of the appellant’s prior criminal history was before the magistrate, it was important that he explain why something less than a sentence of imprisonment could not be imposed. Mr Ey argued that, since the appellant had already served 29 days in custody, it fell to the magistrate to explicitly exclude other sentencing options.
Finally, Mr Ey argued that the sentence should have been suspended. He acknowledged that in terms of what the magistrate had done, not much turned on it, as the effect of his order was only to require the appellant to serve an additional two days before release. He argued, though, that the reasoning which led the magistrate to suspend most of the sentence should have persuaded him to suspend all of it.
Consideration
It is convenient first to deal with the complaint that the magistrate failed to explain why a sentence of imprisonment was required in this case.
Section 11(1) of the Sentencing Act provides as follows:
11—Imprisonment not to be imposed except in certain circumstances
(1) A sentence of imprisonment may only be imposed—
(a)if, in the opinion of the court—
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b)if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in section 10.
(2) This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence.
It was not suggested before the magistrate or in this Court that s 11(1)(a)(i) or (ii) were applicable. However, s 11(1)(a)(iii) and (iv) were potentially relevant. The magistrate was told of a court appearance in 2009 for possessing a firearm without a licence, which is punishable by imprisonment, and also offences relating to exceeding the maximum driving time and log book offences. However, it seems that the magistrate was not told of some 12 firearms offences which occurred in 2010 but for which the appellant was not convicted until March 2012. These attracted a suspended term of three months imprisonment and an onerous community service. There were also offences of making a false report to police and aggravated deception, also occurring in 2010 but dealt with in March 2012, for which the appellant received a six month suspended sentence. It is to be noted that convictions for these offences were recorded and penalty imposed between the period when the unlawful possession offences occurred and the time of the appellant’s sentence for them. In my view, despite that fact, s 11(1)(a)(iii) applied. In addition, the magistrate was entitled to take the view that s 11(1)(a)(iv) applied.
It is true that in his ex tempore remarks the magistrate did not refer in terms to s 11. I do not consider that there was any obligation upon him to do so. I take the general principle to be that a sentencing court is not obliged to make reference to the full array of dispositions available to it or to every fact relevant to the penalty determined on, although it is of course necessary for the court to state its reasons for imposing the sentence: s 9 of the Sentencing Act. That may be done in succinct terms. Here, in his reasons, the magistrate dealt with, in some detail, the facts of the offences, their gravity, matters personal to the appellant, the protracted history of the charges and the appellant’s pleas of guilty. I consider it important that this Court eschew an approach that encourages long-winded and technical sentencing remarks. Sentencing remarks are directed to the person being sentenced. They should not amount to a recitation of matters of law. Wherever possible, magistrates are to be encouraged to give ex tempore remarks. To do so promotes efficiency in the courts and is also in the interests of defendants.
In my view, the magistrate’s references to the value of the spreader and the seriousness of the offending indicated the way in which he viewed the offences. The offences appeared to have arisen after three different thefts of property and the appellant lied to police when questioned about the items. The magistrate’s statements were sufficient to explain to the appellant why a sentence of imprisonment was called for. The magistrate was entitled to proceed as he did without further reference for the reasons justifying a sentence of imprisonment. As it turns out, the appellant had a more serious record of offending than was made known to the magistrate.
Turning to the argument that the sentence was manifestly excessive, it is true that a sentence of five months imprisonment for two offences of this type was a moderate to severe sentence. However, again, the items in the appellant’s possession were expensive items. Their owners had been deprived of their use for some years. It is likely that those owners suffered significant inconvenience as a result of being deprived of them. Although he ultimately pleaded guilty to these offences, some years had passed since the appellant was first investigated in relation to them.
Sentencing for offences of this nature falls regularly to magistrates. They are accustomed to seeing the full gamut of such offences and they bring to bear on that task both experience and expertise. Bearing in mind that the magistrate was sentencing for two such offences, I cannot say that the sentence fell outside the area of discretion reserved to him.
I turn to the question of suspension. The balance of the month to be served, being one or two days, was served immediately after sentence was imposed. At this juncture it seems rather pointless to dwell on the issue. In any event, I consider the decision to only partially suspend was open to the magistrate. Especially once it is realised that the appellant went on to commit other offences subsequent to the commission of the two counts of unlawful possession (as to which see R v McInerney (1986) 42 SASR 111) I cannot say that the decision not to wholly suspend the sentence was wrong.
Conclusion
For these reasons I consider that, although the sentence imposed might be considered to be a relatively severe one, it was not outside the range of sentences available to the magistrate.
The appeal must be dismissed.
The orders I make are as follows:
1. the time within which to lodge an appeal is extended to 8 July 2015,
2.permission to amend the Notice of Appeal to add grounds 2 and 3 as set out in the outline of argument of the appellant is granted,
3.the appeal is dismissed.