Collins v Police No. Scgrg-97-1045 Judgment No. S6387

[1997] SASC 6387

COLLINS v POLICE

Doyle CJ (ex tempore)

This is an appeal against sentence.

The appellant pleaded guilty to a charge of stealing a motor vehicle of the value of about $3,000.  The motor vehicle in question was taken from the car park of the Tea Tree Plaza shopping centre one evening.  It was actually driven away by a co-offender, Landherr, but by arrangement with the appellant. Landherr met the appellant nearby and they then took the vehicle to the appellant's residence.  The appellant and Landherr then removed parts from the vehicle that they wanted for their own use.  During the course of a party at the house a few days later, it seems that various other people at the party removed other parts.  The vehicle was then you dumped not far away, where it was found by the owner in a severely damaged condition.

The appellant was apparently cooperative with the police when spoken to about the matter, and he pleaded guilty.  The appellant also pleaded guilty to a charge of driving the motor vehicle without the consent of the owner. 

The magistrate imposed a single sentence of six months imprisonment.  He suspended the sentence upon the appellant entering into a bond to be of good behaviour for a period of two years.  The appellant was required to perform 160 hours of community service and to pay compensation of $1,200.  He was disqualified from holding or obtaining a drivers licence for a period of 12 months.  The magistrate said that a sentence of imprisonment was required notwithstanding the appellant being young and having no prior convictions.

The complaint on appeal is that the sentence is manifestly excessive.  There is also a complaint that the sentence imposed upon the appellant is disproportionate to that imposed upon Landherr, who received the same sentence. The appellant was sentenced on 20 June 1996.  The notice of appeal was not filed until 16 July 1997.  The explanation for the delay appears to be that Landherr was not sentenced until 23 April 1997.

The first issue is whether I should extend the time for the institution of appeal.  The time for appealing is 14 days. The facts indicate that it was only after Landherr was sentenced that there was any thought of an appeal, and the information provided to me on the hearing indicates that the main reason for the appeal may, in fact, be the fact that the appellant has committed an offence which involves a breach of the bond.  In considering the question of delay, I should bear in mind that before the magistrate the appellant was represented by counsel who made submissions on his behalf. In this case, I think it is convenient to put the issue of an extension of time to one side for a moment.

If the complaint about the comparison with Landherr's sentence is valid, the real delay is a matter of about three months only.  It is true that Landherr played, in one respect, a greater role in the offence.  According to the appellant, the parts were wanted for Landherr's car and Landherr was the one who drove the stolen car from the shopping centre.  But the difference in the parts played by the offenders seems trifling to me.  The appellant and Landherr went to the shopping centre car park together to locate a suitable car.  The appellant then waited a short distance away, and Landherr drove the car to where he was. Both of them then travelled in the car.  The appellant also took parts from the car.  The car was kept at the house where the appellant and Landherr both apparently resided. The differences between their respective parts are so minor that, in my opinion, it cannot be said that justice requires that the appellant receive a lesser sentence.  As to their record, I am informed that at the time of the offence Landherr had committed some minor traffic offences.  I do not consider that those minor traffic offences warranted a difference in the sentencing approach.

Since these offences were committed, I am informed that Landherr had been convicted of driving while disqualified, but again I do not consider that those offences, committed after the offences in question, were such as to lead to the conclusion that the appellant must, in justice, have received a lesser sentence that Landherr.  It follows that, in my opinion, a proper approach to sentencing did not require that the appellant's sentence be less than that of Landherr.

It likewise follows that the basis for an extension of time, or at least an extension of time based upon Landherr's sentence, does not exist.  Nor can I see any other real basis for an extension of time.  There is no explanation offered for the delay, other than the fact of Landherr's sentence.

However, I think that I should consider whether the sentence is manifestly excessive, in case there are such indications of error that I should interfere, notwithstanding the unexplained delay.  Accordingly, I turn to the question of whether the sentence is in any event manifestly excessive. 

The offence is a serious one.  It involves the taking and destruction of valuable property. The car was valued at about $3,000, and my impression is that after this incident it was more or less worthless.  The offence is quite prevalent.  It is one about which there is considerable community concern.  The courts simply have to give due weight to the need to deter people that are inclined to commit this offence, and many of them seem to be young men.  The appellant falls into that category.  I consider that the magistrate was entitled to take the view that such an offence calls for a term of imprisonment, even for a first offender.  I would identify the following matters as particularly supporting that approach.  They are the calculated nature of the offence, that is that it was planned, its prevalence, and the value of the property taken. It is also relevant to bear in mind the impact upon of victims of offences such as this, although I acknowledge that in this particular case the victim, apparently a business dealing in motor vehicles in some way, probably did not suffer in the way in which many victims do suffer.

I must say that I do regard the sentence as a heavy one, indeed at the top of the range, for a first offender, but I am afraid that I am unable to treat it as excessive. Accordingly, I do not consider that error has been disclosed of the sort that calls for my intervention despite the lapse of time. By this I mean that if the sentence was clearly erroneous, I might be compelled to intervene despite the lapse of time, but I do not so regard it.

As to the licence suspension and the other orders made by the magistrate, I consider that in all respects the sentence was an appropriate one.

Accordingly, having satisfied myself that in any event the appeal would probably fail, it is my opinion that the extension of time for the institution of the appeal should be refused.  It follows that the order of the court is application for extension of time refused.

There being no application for costs, there is no order as to costs of the appeal.