Coleman v Police No. Scgrg-98-1389 Judgment No. S6953

[1998] SASC 6953

COLEMAN v POLICE
[1998] SASC 6953

Magistrates Appeal:  Criminal

1. OLSSON J.                This is an appeal against various sentences imposed by a stipendiary magistrate upon the appellant, as a consequence of him pleading guilty to a variety of offences charged against him in two separate complaints and an information.  It is complained that, both individually and collectively, the sentences imposed were manifestly excessive in the circumstances; that the magistrate erred in declining to suspend the imprisonment imposed (thereby not giving adequate weight to the rehabilitative aspects of the sentencing process); that the cumulative terms of imprisonment imposed resulted in a crushing sentence for a person of the appellant's age and circumstances; and that the learned magistrate erred in taking into account a Children's Court matter in 1991, when the appellant was aged 13 years, as a significant prior offence for the purposes of sentencing.

2. It must be said that the disposal of the various charges against the appellant followed a somewhat tortuous path.  In part this was due to the need to procure a pre-sentence report, in addition to which the learned magistrate had before him a copy of a social background report which had been prepared by officers of the Department of Family and Community Services in 1991.

3. In the first complaint the appellant was charged with having committed three separate offences on 2nd December 1997.  It contained one count of illegal use, one count of illegally interfering with a motor vehicle, and one count of larceny.  The court was informed that the first two counts related to interference with two vehicles parked at the rear of an hotel car park in Whyalla.  It was said that both vehicles were broken into by a person other than the appellant, who nevertheless got into the vehicle with others.  On the first occasion the driver managed to start the vehicle and reversed it a short distance only.  In the case of the second vehicle the appellant and others merely entered it, but did not drive it.  In each instance a window of the vehicle was smashed by a person other than the appellant and damage occasioned to the ignition mechanism.

4. The appellant pleaded guilty to both of those counts. I infer from the file that the third count must have been withdrawn, as there is no record of a conviction in relation to it. The learned magistrate elected to impose a single penalty in respect of both counts pursuant to the provisions of s18A of the Criminal Law (Sentencing) Act 1988. He sentenced the appellant to three months’ imprisonment, to be served cumulatively upon other custodial sentences imposed on the appellant.

5. The information above referred to was sworn on 19 December 1997.  It alleged that, on 1 November 1997, the appellant broke and entered a shop of Woolworth's (SA) Limited and stole four bottles of liquor valued at $100.  The learned magistrate was told that, on the occasion in question, the appellant was in company with two young man of about the same age.  All were intoxicated.  They decided that they needed to get some more alcohol.  They observed bottles of liquor through a front window of the relevant shop premises in Whyalla.  The appellant broke the window by throwing an axe through it, whilst his companions actually went into the store and took the bottles of liquor.  All three later consumed that alcohol.  About $1500 damage was caused to the premises and the liquor taken was valued at about $100.

6. The learned magistrate imposed a sentence of twelve months’ imprisonment in respect of this offence, to be served cumulatively upon other sentences of imprisonment imposed.

7. The final complaint was lodged on 8 July 1998.  It asserted that the appellant had, on 6 August 1997 at Wirrulla, both illegally used a motor vehicle and also, later, failed to state his full name and address.  It was put to the learned magistrate that the appellant had, on the date in question, been with his uncle, two brothers, his brother-in-law and his cousin near Wirrulla.  They were travelling towards Ceduna when their car had broken down.  It was said that various of the occupants waited by the broken down car whilst the appellant's brother-in-law went for help.  After a time, the brother-in-law returned in another vehicle.  The appellant and his other relatives then got into that vehicle.  The appellant realised that it had obviously been stolen, as he later admitted to the police.  He was a willing party to the relevant illegal use.  The learned magistrate imposed a single penalty of three months’ imprisonment in respect of this and the associated offence of failing to state full name and address.  He also directed that this period of imprisonment be served cumulatively upon the other periods imposed.

8. In the result, the appellant was sentenced to a total period of 18 months’ imprisonment.  A non-parole period of eight months was fixed in relation to the total head sentence.

9. The appellant appeared before the learned magistrate as a 19 year old aboriginal youth with a substantial antecedent record, albeit that a number of offences were those committed as a youth.  However, he has never either served a custodial or had the benefit of a suspended sentence.  As Mr McEwen, of counsel for the respondent pointed out, this situation is somewhat surprising, bearing in mind the number of appearances in the Children’s Court for quite serious breaking offences.  I am constrained to comment that perhaps a short, sharp lessen at a much earlier stage may have proved a more beneficial approach in the long term.

10. He had appeared in Children’s Courts for five breaking offences, unlawfully on premises (two separate offences), possessing cannabis, disorderly behaviour, procure use of vehicle by fraud, and damaging property.  His adult convictions were for unlawfully on premises (two separate offences), offensive language, and producing a controlled substance.  All of his adult offences had been committed in 1996.  He had not previously received a custodial sentence.  Moreover, as Ms Bourke, his counsel, stressed he has not been in serious trouble since the offending the subject of this appeal.  There are some signs, therefore, that he may be coming to a realisation of his prior foolish and irresponsible behaviour.

11. The pre-sentence report indicated that the appellant had experienced a difficult and traumatic childhood.  Whilst it was conceded that he was in the high risk category for re-offending, it was pointed out that all sentencing options short of a requirement actually to serve a custodial sentence had not been resorted to.

12. The appellant never knew his father and was virtually abandoned by his mother at the age of five months.  He was brought up by a responsible and caring grandmother.  Nevertheless it is considered that his presentation indicates unresolved feelings of grief and resentment.

13. He performed quite well at school, but did not enjoy it.  He left in year 9.  In latter times he has indulged in considerable alcohol and substance abuse.  That has not abated.  He very much lacks maturity and when interviewed by the probation officer, did not seem to appreciate the seriousness of his offending behaviour.

14. Most of the offences under consideration were committed whilst he was intoxicated to some degree.  All of them were committed in company with others, by whom he has easily been led.  In only one of them was he a principal participant, in the practical sense of that expression.

15. The appellant has no employment skills and has never worked at gainful employment.  He claimed, recently, to have entered into a relationship with a young woman aged 22.  This has, however, been of short duration.  Ms Bourke says that this has proved a beneficial influence and that, currently, he is not abusing alcohol.

16. Prior to being released on bail the appellant spent nine days in custody.  He has, since being sentenced, served almost two months in gaol.  This is said to have been a very difficult and real lesson to him, which has already had a strong deterrent impact.

17. Unfortunately the sentencing remarks of the learned magistrate cannot now be located.  In a written report the learned magistrate indicated that he had allowed a “substantial discount” for timely pleas and had taken into account time spent in custody, which he had noted as 11 days.  He commented that he had made reference to offences of break enter and larceny as a child merely to illustrate that the present breaking offence was not an isolated incident.

18. Distilled to the essence and despite the multiple grounds of appeal pleaded, there is really only one issue arising for consideration.  Counsel for the appellant submits that, bearing in mind the young age of the appellant and the circumstances to which I have referred, a requirement actually to serve the various cumulative sentences imposed is unduly crushing.  This is particularly so as the appellant has never had the benefit of a suspended sentence.  It is contended that this is the more so when it is borne in mind that the sentences are said, already, to have been substantially discounted for timely pleas.

19. I agree with Mr McEwen that, bearing in mind the record of the appellant and the nature of the offences, the total head sentence, whilst severe, cannot be said to be manifestly excessive.  The real issue in this case is whether the requirement actually to serve it is inappropriate.

20. This court has, on numerous occasions in the past, pointed out that, in the case of young offenders, even those with a significant antecedent background as a child, it is a quantum leap to require them to actually serve a substantial custodial sentence, without first having had the benefit of a suspended sentence.  Because of the absence of detailed sentencing remarks I do not know what prompted the learned magistrate to adopt the sentencing approach appealed against.  Of necessity I must virtually deal with this matter afresh as if no reasons were ever given.

21. In the circumstances as I have outlined them I am of the opinion that the requirement that the appellant actually serve the custodial sentences imposed did render them manifestly excessive.

22. Having regard to the fact that the appellant has already been in gaol for a total of almost two and a half months, it seems to me that the appropriate course is to allow the appeal and order that the sentences imposed be suspended on entry by the appellant into a bond of $100 to be of good behaviour for a period of two years a condition of which be that he be subject to the supervision of a probation officer.  There will be an order accordingly.