Coombs v Police - [2013] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
COOMBS v POLICE
[2013] SASC 126
Judgment of The Honourable Justice David
8 August 2013
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
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY
Appeal against sentence. Appellant pleaded guilty to one count of unlawful possession and sentenced by a Magistrate to a term of imprisonment of two months. The appellant now appeals against this sentence on the grounds that it was manifestly excessive and that the term of imprisonment should have been suspended.
Held: Appeal dismissed.
1. The appellant's wrist watch was originally taken by police and included in the particulars of the charge on complaint, before it was later returned to him and omitted from the charges. The watch remained listed in the particulars of the complaint and the Magistrate referred to "watches" when listing the property that was the subject of the charge in his sentencing remarks. This error alone is not a mistake that is of such a nature to have caused the sentencing process to have miscarried. Although no single watch or watches should have properly been included in the charge against the appellant, in the context of the property that was properly the basis of the charge against the appellant, the inclusion of a watch or watches would not have made a difference to the sentence imposed.
2. The Magistrate did not give undue attention to the appellant's past offending when considering both the term of imprisonment and whether or not to suspend that term of imprisonment. The Magistrate's remarks did not amount to directing himself that he had no discretion as to whether or not to impose a term of imprisonment and also whether or not to suspend that term. The appellant's history of dishonesty offences was an important factor in the sentencing process in this particular case, especially in regard to the question of suspension.
3. The Magistrate did not err in categorising the offending as an offence of dishonesty. In the circumstances of he present case, it was not inappropriate to describe the offence of unlawful possession as a dishonesty offence when sentencing.
Summary Offences Act 1953 (SA) s 41(1), referred to.

COOMBS v POLICE
[2013] SASC 126
Magistrates Appeal: Criminal

DAVID J: This is an appeal against sentence. The appellant was charged with the offence of unlawful possession. The particulars of the offence were:
On the 9^th day of July 2012 at LYRUP in the said State, had in their possession personal property namely, 3 nail guns, router, belt sander, impact drill set, cordless drill, tool apron, 2 makita batteries, riggers gloves, lock pick gun, lock pick set, battery charger, wrist watch, canvas bag containing tool bits, sports bag containing drill bits, which either at the time of such possession, or at a subsequent time before the making of this complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means. Section 41(1) of the Summary Offences Act 1953. This is a summary offence.
The maximum penalty was two years imprisonment or a fine of $10,000.
On 7 December 2012, the appellant pleaded guilty to the offence before a Magistrate and, on 27 March 2013, the appellant was sentenced by a Magistrate to a term of imprisonment of two months.
The appellant appeals against that sentence arguing that it was manifestly excessive and also that the term of imprisonment should have been suspended.
It was put to the Magistrate in sentencing submissions that the appellant was 29 years of age and was born in Sydney where he lived until he was seven. He then moved to Renmark with his parents and lived there until he was 17. His parents separated when the appellant was approximately 19 years of age; his mother returned to Sydney and his father continued to live in Renmark. The appellant went to Renmark High School and completed Year 10. On leaving school, he undertook a TAFE correspondence course for 12 months and worked for his parents on their block doing labour work. The appellant then went to Sydney for up to two years before returning to Berri to live with his partner. At the time of submissions, the appellant and his partner had been together for four years and intend to get married.
About six months prior to the sentencing submissions, the appellant moved to Adelaide. He received the Newstart allowance and his last employment involved the running of his own business of the online sale of apricot kernels for a niche market. At the time of the offending, he was living at Port Noarlunga.
On Saturday 7 July 2012, the appellant and his partner drove to Berri to visit friends and his partner’s grandmother. On Sunday 8 July 2012, they visited both the grandmother and some friends and, on Monday 9 July 2012, the appellant got a phone call from a friend who had run out of petrol. They met with that friend and followed him to Murray Bridge. The friend was selling his car and they took him back to Berri. They got petrol for the friend so he could take his car to be sold.
Another friend, Stephen, called and they went to his place where the appellant bought some tools. Stephen wanted $1,000 for the tools but the appellant paid $450 for them. It was not Stephen who actually sold him the tools, but a person called Mick. Those tools were the subject of the charge of unlawful possession, except for a watch which was returned to the appellant some days after he was arrested.
It was put to the Magistrate that the appellant was reckless in relation to the offending and, by his plea of guilty, he could not prove that he came by the items honestly.[1]
[1] Affidavit of Russell John Cole dated 22 July 2013.
At the time of sentencing, the appellant had an extensive offending history. In summary he had:
1.Five prior convictions for unlawful possession.
2.Three prior convictions for theft and one prior conviction for interfering with a motor vehicle without consent.
3.One prior conviction for aggravated serious criminal trespass and one prior conviction for non-aggravated serious criminal trespass.
4.Four prior convictions for failure to comply with bail agreements and three estreatments of bail.
5.One prior conviction for attempting to obstruct or pervert the course of justice.
6.Two prior convictions for assault.
7.One prior conviction for carrying an offensive weapon and one prior conviction for possessing a firearm without a licence.
8.Two prior convictions for driving disqualified, one prior conviction for driving unregistered, and one prior conviction for misusing a motor vehicle.
When sentencing, the Magistrate started with a term of imprisonment of four months but reduced that by one month to take into account the appellant’s plea of guilty. The Magistrate further reduced the sentence by another month to take into account that the appellant’s last serious offending before the present offence was on 3 March 2009. At that time, he was convicted of a number of offences including serious criminal trespass, theft and two counts of unlawful possession for which he was imprisoned for a total of 21 months, two weeks and 28 days with a non-parole period of eight months.
The Magistrate was asked to suspend whatever term of imprisonment he imposed but declined to do so. To this end, the Magistrate stated in his remarks:[2]
In my view, having regard to your prior offending history and the fact that you have previously served sentences of imprisonment, but it has not appeared to deter you from becoming involved in further offending involving dishonesty, there is no basis on which I can suspend the sentence. You will serve the two months imprisonment that I have just imposed.
[2] Police v Coombs, judgment of Ms B Dixon SM, 27 March 2013, at [6].
Appeal
Mr Mancini, counsel for the appellant, now argues that the sentence of imprisonment was manifestly excessive and the Magistrate has erred in not suspending that term of imprisonment.
His first argument, which applies to both aspects of the appeal, is that the Magistrate said the following when sentencing:
Mr Coombs, in relation to the charge of unlawful possession, you were detected on 9 July 2012 with a large amount of property in your possession, in the nature of tools, watches, nail guns, pick keys and the like. You say that you had gone to Berri with your fiancée to visit her mother on the Saturday, that you heard that these tools were going offered for sale for $1,000, and that on the Sunday you arranged to purchase them for $450.
(Emphasis added)
Mr Mancini argues that by reference to “watches” the Magistrate has made a mistake because the police returned the appellant’s watch which was taken from him when arrested and it was to form no part of the charge. The fact that “wrist watch” was erroneously included in the particulars of the charge did not seem to be picked up during the sentencing process and it is now argued that this mistake is of such a nature that the sentencing process has miscarried.
I reject that argument. In his summary, the Magistrate was merely categorising the property in the generic sense as stated in the particulars of the charge, and the significance of whether there was a watch or watches involved in that material could have made no difference to the sentence.
Mr Mancini also argues that, when considering both the term of imprisonment and whether to suspend, the Magistrate has given undue attention to the appellant’s prior offending history. Mr Mancini criticises the following passage when the Magistrate said:[3]
You are a person who has previously been imprisoned for offences involving dishonesty and you can expect to be imprisoned each time you are apprehended for an offence involving dishonesty. …
Further on in his remarks the Magistrate also stated:[4]
Having regard to your prior offending history, I consider that a sentence of imprisonment is the only appropriate penalty to impose on the charge of unlawful possession, even taking into account the gap between the dishonesty offences. …
[3] Police v Coombs, judgment of Ms B Dixon SM, 27 March 2013, at [4].
[4] Police v Coombs, judgment of Ms B Dixon SM, 27 March 2013, at [5].
Mr Mancini argues that these remarks indicate that the Magistrate had, in a sense, directed himself that he had no discretion either as to whether or not to imprison, or as to whether or not he should suspend the term of imprisonment. Mr Mancini argues that those remarks indicate that the Magistrate’s approach was that the appellant must be imprisoned immediately because of his prior history irrespective of the nature of this offending.
I also reject that argument. The Magistrate, by those remarks, is not directing himself in such a way but sensibly warning the appellant of the consequences for continually committing offences of dishonesty. Also, the fact of the appellant’s previous history of dishonesty offences is an important factor to take into account when considering whether there was good cause to suspend the sentence.
Mr Mancini further argues that the Magistrate has erred in categorising the offending as an offence of dishonesty. There are, of course, degrees of dishonesty but to describe the offence of unlawful possession as a dishonesty offence when sentencing, especially in the present circumstances, is not inappropriate.
I find that the sentence of imprisonment is not manifestly excessive and the Magistrate has made no error in sentencing that has affected that sentence. Also, there is no error demonstrated on the Magistrate finding that there was no basis on which he could suspend the sentence.
Conclusion
I dismiss the appeal.