Collie v Police No. Scciv-02-27

COLLIE v POLICE
[2002] SASC 109
Magistrates Appeal: Criminal

DOYLE CJ: This is an appeal against convictions recorded by the Magistrates Court, and against the sentence imposed by that court. Mr Collie appeared before the court charged with three offences. Count 1 was a charge of being on premises without lawful excuse; count 2 was a charge of hindering a police constable in the execution of his duty; count 3 was a charge of driving a motor vehicle while not the holder of an appropriate licence. All offences were alleged to have occurred on 30 August 2001.
The complaint alleging the offences was lodged with the Magistrates Court on 20 September 2001. Mr Collie was arrested on 25 October 2001 and came before the court in custody on 26 October 2001. On that day he pleaded guilty to all counts. He was remanded in custody and a pre-sentence report was ordered.
I gather that Mr Collie had been arrested on a warrant issued by the Parole Board. He had been released from prison on parole on 3 August 2001, about four weeks before these offences were committed. The warrant was not tendered before me. I understand that it was issued on the basis of alleged breaches of conditions of parole and would have brought Mr Collie before the Board to enable it to consider whether to revoke his parole. My understanding is that the alleged offences of 30 August were not the basis for the issue of the warrant. However the main point is that he was in custody on 26 October 2001.
On 9 October 2001 Mr Collie came before the court again, still in custody. On counts 1 and 2 the Magistrate recorded a conviction and imposed a single penalty of imprisonment for six months. The imposition of that sentence had the effect of terminating Mr Collie’s parole: s 75 of the Correctional Services Act 1982.
The Magistrate directed that the sentence of 6 months imprisonment be cumulative on the balance of the unexpired period of parole which was two years two months five days, thus the total head sentence was two years eight months five days. The Magistrate fixed a non-parole period of one year eight months. On count 3 the Magistrate convicted without further penalty.
Mr Collie appeals against the convictions on the ground that he was unrepresented, was not properly advised about his plea, might have had a defence to count 1 and could not be guilty of count 2 as a matter of law. In relation to count 1 it is also submitted that there was a risk of a miscarriage of justice having regard to the fact that he pleaded guilty when he was unrepresented, not knowing that the prosecution did not have a statement from a particular witness supporting its case. He appeals against sentence on the basis it was excessive.
The prosecution alleged that Mr Colley drove a motor car into a particular street and when the police arrived (I do not know the circumstances of this), they saw him standing next to the motor car. They approached him, apparently with a view to speaking to him about whether he had an appropriate licence. Mr Collie ran away and then climbed over a fence into a residential property, and then over another fence into another residential property. A police constable was pursuing him. Mr Collie was later found hiding in a shed at the rear of a house occupied by Ms Barker. Mr Collie told the constable that he did not hold a current driver’s licence and admitted that he had hidden to escape from the police.
In an affidavit filed in support of the appeal Mr Collie states that he spoke to a duty solicitor before going into court and she advised him to plead guilty telling him that he would receive ‘fines and a loss of licence’. She told him that the Parole Board would deal with the question of parole separately. Mr Collie says that he pleaded guilty believing that he would be fined and lose his licence.
An affidavit sworn by the relevant duty solicitor was filed. It is very brief. She says that she was asked to tell Mr Collie what charges he was facing and that she did that. She does not recall giving him any advice about a plea of guilty. She did not appear for him.
In his own affidavit Mr Collie does not suggest that he did not appreciate the nature of the charges or the significance of entering a plea of guilty. No application was made to cross-examination Mr Collie or the duty solicitor.
The Court has power to allow an appeal against a conviction entered as a result of a plea of guilty, but the circumstances in which the Court will do so are limited. It is not necessary to refer to the cases. There is authority for the view that such a conviction will be set aside if the defendant did not appreciate the nature of the charge, or did not intend to admit guilt, or if upon the admitted facts the defendant could not as a matter of law have been convicted.
However, the power to allow an appeal is not confined to those categories. I accept that the Court may allow an appeal whenever it is satisfied that there has been a miscarriage of justice.
In the present case there is no basis for a finding that Mr Collie did not appreciate the nature of the charges against him or did not intend to admit guilty. There is no suggestion by Mr Collie that he was not informed of his right to be represented or of the fact that he faced the possibility of a custodial sentence.
In relation to count 1, Mr Slade, who appeared for Mr Collie, submits that when Mr Collie pleaded guilty the police did not have a statement from Ms Barker establishing that Mr Collie did not have permission to enter her property. I am prepared to accept that that is so. I do so because the solicitor for the respondent has failed an affidavit exhibiting a statement from Ms Barker dated 18 February 2002. There is no suggestion of an earlier statement. In this statement she says that Mr Collie did not have her permission to enter her property on the occasion in question. She apparently knows Mr Collie and adds that she had given him permission to enter her property “years ago when I was present and [Mr Collie] was a teenager”.
In his affidavit Mr Collie does not assert a belief that he was entitled to enter the premises on the occasion in question. The submission that Mr Collie had a possible defence to count 1 is tenuous indeed, bearing in mind the absence of any relevant claim in his affidavit. Even if it had been made it would have to be regarded sceptically having regard to the circumstances in which he entered the property.
The fact that the statement was not in the possession of the prosecutor when Mr Collie pleaded guilty is neither here nor there. It cannot be said that there is a risk of a miscarriage of justice simply because significant evidentiary material, which was apparently available, was not in the hands of the prosecutor when the plea of guilty was entered. Even allowing for the fact that Mr Collie was unrepresented, the circumstances identified by me do not provide a basis for allowing the appeal against conviction in relation to count 1.
The appeal against conviction in relation to count 2 was not pursued. Mr Slade did not argue that Mr Collie’s conduct in running away from the police officer could not in law amount to hindering the police office in the execution of his duty, namely in establishing whether Mr Collie held an appropriate licence. The appeal against conviction must be dismissed.
The maximum penalty on each of count 1 and count 2 was imprisonment for six months. In the circumstances the two offences are appropriately treated as a single incident. If separate sentences had been imposed it would have been appropriate to make them concurrent.
I consider that a sentence of six months’ imprisonment was excessive. The offences were relatively minor instances of their type. Admittedly, Mr Collie has a poor record. He has quite a few convictions, and some of them are for quite serious offences. As well, he was released on parole only about four weeks before the offences were committed. But even so, the offences did not warrant the punishment that was imposed. The appeal against sentence should be allowed.
Council agreed that it was appropriate that I should re-sentence Mr Collie rather than remit the matter to the Magistrates Court for yet another hearing.
Mr Collie was in custody from 25 October until he was sentenced on 9 November, a period of about two weeks. He was then in custody for two months until 9 January 2002.
In all the circumstances I consider that an appropriate sentence for counts 1 and 2 is a single sentence of imprisonment for two months. This is effectively a sentence of four months’ imprisonment because of the time spent in custody. As I will indicate, I intend to suspend the sentence that I am imposing. In those circumstances my understanding is that the two months that he has served will not come off the balance of the previous sentence. That is why I say that what I am doing is equivalent to imposing a four-month sentence of imprisonment.
As to count 3 I agree that the sentence imposed by the Magistrate, conviction without further penalty, was appropriate.
The combined head sentence then becomes two years four months five days. In relation to this head sentence I fix a non-parole period of one year four months. Again I am proceeding on the basis that if this comes to be served, the two months that Mr Collie has served will not come off the non-parole period.
I turn to the question of whether the sentence should be suspended.
Mr Collie has been living with Ms Sparrow for about nine months and is planning to marry her in June. She has three children, all of whom live with her. I am told that Mr Colley has prospects of employment, in fact of immediate employment, if he is not imprisoned. Although his record is poor I am prepared to give him a last chance, particularly in view of the fact that his relationship with Ms Sparrow might cause him to settle down and behave more sensibly. But this should be regarded very much as a last chance.
Accordingly, I will order that the sentence of 2 months imprisonment be suspended upon Mr Collie entering into a bond for twelve months in the sum of $500. The conditions of the bond are that he be of good behaviour, that he be under the supervision of a community corrections officer for the period of the bond, and that he report within two working days to the offices of the Department for Correctional Services at Elizabeth Community Correctional Centre, 13 Gillingham Road, Elizabeth, SA 5112.
Accordingly, the orders are as follows.
1.That the appeal against conviction be dismissed.
2.That the appeal against sentence be allowed.
3.That the sentence imposed by the Magistrates Court on count 1 and count 2 be set aside but the sentence imposed on count 3 stand.
4.That Mr Collie be sentenced on count 1 and count 2 to imprisonment for two months.
5.That in relation to the combined head sentence of two years four months five days there be fixed a non-parole period of one year four months.
6.That the sentence of imprisonment for two months be suspended upon Mr Collie entering into a bond for a period of twelve months in the sum of $500 the conditions being that he be of good behaviour and that he be under the supervision of a community corrections officer and that within two working days he report to the address which I gave a moment ago.

[2002] SASC 109

10 April 2002