Colin Angus Mackenzie v Police; Jessica Angel v Police Nos. Scgrg-98-579, Scgrg-98-580 Judgment No. 6714 Number of Pages 8 Criminal Law

[1998] SASC 6714

MACKENZIE & ANGEL v THE QUEEN

Magistrates Appeal

LANDER J

These are two appeals brought by Colin Angus Mackenzie and Jessica Angel against sentences imposed in the Magistrates Court sitting at Elizabeth on 6 April 1998.  They are separate appeals but it is convenient for the reasons which follow that they be dealt with together.

Colin Mackenzie was charged on complaint with three separate offences committed on 6 May 1997.  They were: driving a motor vehicle while disqualified from holding or obtaining a licence; driving an unregistered motor vehicle; and driving an uninsured motor vehicle.

On a separate complaint he was charged that on 16 May 1997 he committed the same three offences which he was alleged to have committed on 6 May 1997.

On yet a further complaint he was charged that on 11 June 1997 he had committed the same three offences committed on 6 May 1997 and 16 May 1997 together with a further offence of failing to truly answer questions put to him by a police officer.

He was released on bail in respect of those various offences but on 9 September 1997 he was charged with committing a further offence of breaking and entering a dwelling house and stealing jewellery, make-up and computer games to the value of $6,000.

Finally on 11 September 1997 he was charged with receiving a number of goods including electrical goods to the value of about $1,900.  He received those goods, from Jessica Angel, the co-appellant.  He was also charged with giving a police officer a false name. 

He pleaded guilty to all those charges.  A further charge of larceny on 11 September 1997 of the electrical goods (worth $1,900), for which he had pleaded guilty to receiving, was dismissed.

In respect of the minor offences a number of fines were imposed which I shall not recount because they are unimportant for the purpose of this appeal.  However the various terms of imprisonment imposed are important and I shall set out each of the terms imposed in relation to the various offences. 

In relation to the driving whilst disqualified on 6 May 1997 he was sentenced to be imprisoned for 14 days.  For the second driving whilst disqualified on 16 May 1997 he was sentenced to be imprisoned for 21 days  and for the third offence of that kind on 11 June 1997 he was sentenced to be imprisoned for 28 days.

Each of those sentences were cumulative on each other.

For the break and enter of 9 September 1997 he was sentenced to be imprisoned for 15 months cumulative upon the other sentences of imprisonment. 

For the conviction of receiving on 11 September 1997 he was sentenced to be imprisoned for nine months, again cumulative on the sentences of imprisonment.  No penalty was imposed in relation to a further charge for which he was convicted of giving a false name on 11 September 1997.  The conviction appears to be overlooked but nothing now turns upon it.

The total of the head sentence was therefore two years, two months and one week. 

The learned Magistrate set a non-parole period of 13 months to date from 2 March 1998 which was the date when the appellant first went into custody.

Jessica Angel was charged with stealing a hammer drill and an angle grinder to the value of $1,999 on 27 June 1997.  She first came before the court in relation to that offence on 18 July 1997 when she was granted bail.

She was next charged with breaking and entering a dwelling house on 24 July 1997 and stealing six watches, three chains, two rings, two sets of earrings, a colour television and a video cassette recorder.  The proceeds of this break had a combined value of about $4,140.  Thirdly she was charged with breaking and entering a unit the premises of a relative on 11 September 1997 and stealing a number of items to the value of $1,900, being the items for which Colin Angus Mackenzie was convicted of receiving.

She therefore committed the two breaks at a time when she was on bail in relation to the larceny.

In relation to the larceny she was sentenced to be imprisoned for four months.  In relation to each of the breaks she was sentenced to be imprisoned for 10 months, each of which was cumulative on each other and cumulative on the sentence of imprisonment in relation to the larceny.  The total head sentence was therefore twenty-four months.  The learned Magistrate set a non-parole period of twelve months.

I shall deal firstly with the appeal of Colin Mackenzie.

The grounds of appeal are:

“The Learned Sentencing Magistrate failed to sufficiently take into account the following factors as a result of which the sentence imposed is manifestly excessive;

5.1... the defendant's relationship with his de facto Ms Jessica Angel and the stability this has provided to life recently.

5.2    The defendant's truly unpleasant social background.

5.3... The mutual dependence of the applicant upon Ms Jessica

Angel and the lack of significant others in either of their lives.

5.4... Positive steps taken by the applicant and Ms Angel to rid themselves of heroin addiction since July 1997 and their success on the methadone program (see pre-sentence report page 4).

5.5... The applicant's attitude to these offences and in particular apparent expressions of genuine remorse (see page 5 pre-sentence report).

5.6... The defendant’s previous responses to supervision and lack of recent offending generally, particularly dishonesties.

5.7... The defendant's previous medical history including the necessity for him to obtain prescribed pain relief following severe injuries in a motor vehicle accident referred to in the pre-sentence report.”

........................... As the first ground of appeal shows Colin Mackenzie and Jessica Angel live in a defacto relationship.  They have been together for about five years.  He is aged 31 and she is aged 20.  There is no doubt on all of the evidence that they have a very close relationship and are emotionally dependant upon each other and require each other’s company to function.

........................... I think the learned Magistrate had that in mind in imposing the sentences he did.  It can be noted that they will be released, if both of the sentences stand, within a few days of each other.

........................... The circumstances of Mr Mackenzie's offending are unremarkable.  He drove a vehicle in flagrant disregard of a court order on three separate occasions.  On any understanding of the decision in Police v Cadd (1997) 69 SASR 150 his behaviour amounted to a contumelious disregard of the orders of the court.

........................... There is little or nothing that could be said in relation to his behaviour in relation to those offences.

........................... I turn to the more serious offences.  They were committed whilst he was on bail in respect of the driving offences.  The break and enter netted the appellant a significant amount of money.  Entry to the premises was obtained by smashing a window.  Most of the rooms were searched and a significant amount of goods were stolen.  The appellant said that he was not able to remember whether he had committed this offence because at the time he was heavily dependant upon drugs and his memory was affected.

........................... The receiving offence was, as I have already said, committed when the appellant received the goods from Jessica Angel, who broke and entered the premises of a Ms Geidel, a step sister of Jessica Angel.  She made entry to those premises by breaking a window.  Only $900 worth of the $1,900 worth of goods has been recovered.

........................... The appellant has a significant and unimpressive previous criminal history.  He has been before the courts off and on since he was about 15.  As a juvenile at the age of about 15 he committed the offences of larceny and building break.  A year later he was convicted for receiving and larceny.  When he was nearly 16 he was convicted of larceny.  When aged 17 and a half he was convicted of a number of building breaks and larceny.  As a juvenile he committed a number of other offences including damaging property, unlawfully on premises, drunkenness and disorderly behaviour, common assault and a number of traffic offences.

........................... His first conviction within a month of becoming an adult was for a building break.  A month later he was convicted of assault.  Within about two months of becoming an adult he was convicted of disorderly behaviour and giving a false name and address.  In December 1990 he was convicted of larceny.  His last building break was committed when he was about 25.  He was sentenced to be imprisoned for that offence but the sentence was suspended.

........................... Since that time he has continued to commit offences although they have mainly been traffic offences and behavioural offences.  What can be said in his favour is that he has not committed an offence relating to dishonesty since about April 1991. 

........................... The appellant had an unfortunate childhood.  He is one of four children and the only one who has come into contact with the criminal justice system.  His parents are alive and together after 30 years of marriage.

........................... He had an unfortunate relationship with his father who persistently and unreasonably punished him.  He spent most of his juvenile life trying to avoid contact with his father and he displayed disruptive and oppositional behaviour.   Eventually he was judged to be uncontrollable.  He was detained in an institution for three years between the ages of ten and thirteen.  He was rarely visited by his parents and when he was allowed to return to his parents he claims that he was rejected.  He left home at thirteen when his father who was an interstate driver returned home.  He was a street child by the age of sixteen.

........................... As can be expected in view of the history recounted he had a disrupted education eventually being expelled without finishing Year 9.  He worked for some time before he was involved in a serious motor accident in 1989 for which he received $250,000 compensation out of which he received $120,000 net.  He has wasted all of that money on drugs.

........................... He has suffered from depression since that motor vehicle accident in 1989 and has attempted suicide on two occasions, the most recent in 1993.

........................... The appellant claims that he became dependent upon opiates as a result of his extensive hospitalisation after his motor vehicle accident.  As a result of that dependency he spent the whole of his compensation on heroin.

........................... In July 1997 he sought admission to a methadone program partly because of his heroin addiction and partly because of the pain he was experiencing from his injuries.

........................... He was accepted into the methadone program in August 1997 and has attended regularly and has advanced to Stream B which means that he is entitled to take away his methadone for self treatment.  He has been required to submit to urine analysis and with a single exception shortly after he entered his methadone program all specimens have been drug free.

........................... It is claimed by the appellant that the offences relating to the present appeal were not committed for the purpose of obtaining money for drugs but for the purpose of paying previous debts incurred for buying drugs.  It does not seem to me to matter much whether or not the offences were incurred for the purpose of obtaining money for future supply of drugs or past supply of drugs.

........................... The learned Magistrate took into account the appellant's guilty pleas and said that he would reduce the penalty by one-third on that account.

........................... The sentence arrived at is high and perhaps a little higher than I would have imposed.  However, in arriving at the appropriate sentence in relation to this appellant regard had to be had to his apparent indifference to authority.  In particular it could not be overlooked that a number of these offences were committed whilst he was on bail.

........................... It was claimed in the Notice of Appeal that the learned Magistrate had insufficient regard to the appellant's expression of remorse in relation to these offences.  I do not agree with that.  Whilst the appellant now claims to be contrite and has exhibited remorse, the fact of the matter is that he continued to offend on a number of occasions whilst on bail.  That is not consistent with ongoing contrition and remorse.  The guilty pleas were some evidence of contrition and remorse but they were entered in circumstances where the cases against the appellant were very strong.  The Magistrate said he had regard to the pleas and reduced the sentences accordingly.  I think he did have sufficient regard to whatever contrition and remorse has been exhibited by the appellant.

........................... It is claimed that the learned Magistrate failed to have regard to the appellant's medical history and in particular to the injuries which he sustained in the motor vehicle accident in 1989.

........................... Whilst of course the appellant is entitled to sympathy for the injuries which he suffered that sympathy cannot stand in the way of a sentence for criminal behaviour which is disassociated with those injuries.

........................... As I have said I think the penalty imposed was high but it was not so high that it could be said to be manifestly excessive.  The appellant has shown himself to be a regular offender and in those circumstances the sentence was not inappropriate.

........................... There is no doubt that the sentences of imprisonment had to be cumulative upon each other because each of them involved quite separate circumstances.

........................... I believe that the non parole period was relatively merciful, having regard to the offender's antecedents and criminal behaviour during the period over which the offences were committed.  His criminal behaviour over that period does not hold out much hope for rehabilitation.  Perhaps the learned Magistrate was more influenced by the appellant’s efforts to rid himself of his heroin addiction.

........................... It cannot be said that the learned Magistrate ought to have suspended this sentence of imprisonment.  Nor could it be said, in my opinion, that the sentence of imprisonment or the non parole period was manifestly excessive.

........................... In those circumstances the appeal must be dismissed.

........................... Jessica Angel also had an unfortunate childhood.   Her father died when she was eleven months old and her mother was left with three children, including the appellant.  None of her siblings have had contact with the criminal justice system although her mother has been imprisoned for drug related offences.

........................... During her childhood she was subject to considerable instability for two reasons.  First, her mother had a serious heroin addiction.  Secondly, her mother moved house on a number of occasions with the result that the appellant attended 20 different schools.  Eventually she left school at thirteen and obtained employment as a dog groomer which work she kept until she was sixteen.  She then met Colin Mackenzie and has been receiving unemployment benefits since that time.

........................... She began using drugs when she was thirteen and over a four year period became dependant upon amphetamines.  When she was about eighteen she began to use heroin.  She also joined the methadone program later in July 1997 and has continued on that methadone program since that time.

........................... Mr Mackenzie was imprisoned in March of 1998 and over the period between the date of his incarceration and her final appearance in court she suffered depression, lost a significant amount of weight, developed a sleep disorder and suffered a reduced energy level.  Her relationship with Mr Mackenzie is such that they are highly co-dependant.

........................... She also has a criminal history but it is far less significant than that of Mackenzie.

........................... Apart from minor drug offences she has convictions for false pretences in April 1996, for larceny in June 1996 and for false pretences in June 1996.

........................... The only sentence which she had received is a fine and the most serious penalty imposed upon her has been a fine of $100. 

She said that the offence of larceny to which she pleaded guilty was committed in circumstances when she found the hammer drill and angle grinder on the footpath and decided to keep the goods and take them to Cash Converters to sell them.   She was in effect guilty of larceny by finding.

The first breaking offence was committed by entering the premises by smashing a laundry window.  None of the property has been located.

She also smashed a rear window to commit the second breaking offence in premises occupied by her step-sister.  As I have already indicated only $900 of the $1,900 has been recovered.

In relation to all three offences the learned Magistrate imposed a sentence of imprisonment.  For the larceny by finding she was sentenced to be imprisoned for four months.  On each of the breaks she was sentenced to be imprisoned for ten months.  Each of the sentences was cumulative on the other making a total head sentence of two years.  He set a non parole period of twelve months.  

The grounds of appeal are:

“The Learned Sentencing Magistrate failed to sufficiently take into account the following factors as a result of which the sentence imposed was manifestly excessive;

5.1............ the defendant's relationship with her de facto Mr Colin Angus Mackenzie and the stability this has provided to her life recently.

5.2............ The defendant's difficult background and in particular lack of parental support.

5.3............ The mutual dependence of the applicant upon Mr Colin Angus Mackenzie and the lack of significant others in either of their lives.

5.4............ Positive steps taken by the applicant and Mr Mackenzie to rid themselves of heroin addiction since July 1997 and their success on the methadone program.

5.5............ The unusual circumstances and motive for the offence taking this defendant outside the usual 'run of the mill'.

5.6............ The defendant's lack of prior serious offending.

5.7............ The likelihood of rehabilitation as a result of other sentencing options available to the Learned Sentencing Magistrate other than immediate custodial term of imprisonment.”

........................... The principle submission put on appeal was that the Magistrate erred in the exercise of his sentencing discretion in failing to suspend the sentence of imprisonment.  Notwithstanding the grounds of appeal it was not said that the sentences were individually or collectively manifestly excessive, nor was it said that the non parole period was excessive. 

........................... I agree with the concessions made by counsel for Miss Angel.  I do not think it can be said that the sentences of imprisonment individually or collectively are manifestly excessive, nor do I think it could be said that the non parole period was inappropriate.  Indeed I think the non parole period indicated that the Magistrate must have taken into account all of her personal circumstances and the result was not ungenerous toward her.

........................... The question remains whether or not the sentence should have been suspended having regard to her youth and immaturity, her antecedents and the fact that she was dependant upon drugs but has broken or is attempting to break that dependency.

........................... The learned Magistrate did not apply his mind directly to the question of suspension.  He merely said that he thought that the conduct merited an immediate term of imprisonment.   No doubt he was influenced by the fact that she, like Mr Mackenzie, committed these offences whilst she was on bail.  Again, like Mr Mackenzie, she committed the offences after she had started on the methadone program and apparently for the purpose of paying some debts incurred in relation to the earlier use of drugs.  Again, I do not think that it is very relevant to the exercise of the sentencing discretion that the proceeds were to pay past debts incurred by drug addiction.

........................... I have not found this matter easy.  In the end, however, I have reached the conclusion that the learned Magistrate failed to have sufficient regard to her youth and her antecedents.  I think also he has not had sufficient regard to the prospects of her rehabilitation.  I think she is not without good prospects for rehabilitation.  I think that is so notwithstanding her emotional attachment and dependency upon Mr Mackenzie.  She will have the opportunity of visiting Mr Mackenzie during his incarceration and, having regard to their co-dependency, that will be to the benefit of both of them.  I think if he had given appropriate regard to those matters he would have reached the conclusion that this appellant deserved a further chance before she was required to serve an immediate term of imprisonment.

........................... Not without some hesitation I have reached the conclusion that it would have been appropriate for the learned Magistrate to have suspended the sentence of imprisonment and in failing to do so, in my opinion, his sentencing discretion has miscarried.

........................... I am prepared to suspend the sentence of imprisonment imposed by the learned Magistrate upon the appellant entering into a bond in the sum of $500 for a period of three years to be of good behaviour and to be under the supervision of a probation officer.

........................... If the appellant is prepared to enter into a bond in these terms I will allow the appeal, in her case, for the purpose of suspending the term of imprisonment imposed by the learned Magistrate.

........................... In the case of Mr Mackenzie the appeal will be dismissed.