Coombs v Police

[2001] SASC 87

COOMBS v POLICE

[2001] SASC 87

1................ MARTIN J.  (Ex tempore)        The appellant pleaded guilty before a Magistrate to a number of offences.  He was sentenced to a total of 36 months imprisonment and a non-parole period of 12 months was fixed. He appeals against the sentence on the ground that it is manifestly excessive.

1. On 8 March 2000 the appellant committed the offences of unlawful possession and making a false statement to a second-hand dealer. On 21 March 2000 he entered a residence as a trespasser and stole a quantity of property together of the value of $5529. On four further occasions in March 2000 he provided false information to a second-hand dealer. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 the Magistrate imposed a single penalty of 18 months imprisonment.

2. On 13 March 2000 the appellant committed the offence of aiding and abetting his co-offender, Ms Deborah Hancock, to commit an offence of serious criminal trespass. A sentence of 12 months imprisonment was imposed to be served cumulatively upon the period of 18 months previously mentioned.

3. In respect of a further offence of providing a false statement to a second-hand dealer, committed on 23 March 2000, the Magistrate recorded a conviction but did not impose a further penalty. For an offence committed between 27 March and 2 April 2000 of entering a place of residence as a trespasser and stealing a quantity of property of the value of about $5465 and cash in the amount of about $200, the Magistrate imposed a further period of 12 months imprisonment to be served cumulatively upon the previous two sentences to which I have referred.

4. In addition to those offences of dishonesty, on 10 July 2000 the appellant drove a motor vehicle while he was disqualified from holding or obtaining a licence. The Magistrate imposed a sentence of two months imprisonment to be served cumulatively upon the three previous sentences of imprisonment. On 20 September 2000 the appellant again drove while disqualified and the vehicle he was driving was unregistered. A single sentence of two months imprisonment was imposed to be served cumulatively upon the previous four sentences. The penalties for driving while disqualified were imposed against a background that, having been disqualified from holding or obtaining a driver’s licence for a period of three years as a consequence of a drink driving offence that occurred in July 1988, in November 1999 the appellant drove while disqualified.  He was subsequently imprisoned for a period of 28 days.

5. The Magistrate accepted that the motive for the offences was to obtain cash or goods to be converted into cash in order to feed the appellant’s long standing drug habit and the habit of his co-accused, Ms Hancock. His Honour noted that Ms Hancock had been dealt with previously by a different Magistrate, but observed that he did not know anything about her prior history of offending, or what factors were taken into account when she was sentenced. His Honour said he was mindful of the problem that can arise when co-offenders are dealt with by different courts, and specifically said that he had endeavoured to consider the question of parity of sentence.

6. The Magistrate expressly took into account a number of matters put to him in mitigation, including the appellant’s plea of guilty and co-operation with the investigating authorities. He reduced the total period of 46 months to 36 months by reason of that plea and co-operation. His Honour stated that he took into account the period of 10 days that the appellant had spent in custody.

7. The appellant was not a first offender. He has shown a disregard for the road traffic laws and, some years ago, committed offences of dishonesty. However, he had not previously been sentenced to imprisonment for any offence of dishonesty. The Magistrate correctly observed that the appellant did not have a bad history of dishonesty offences.

8. Counsel for the appellant was unable to demonstrate that the Magistrate overlooked any relevant factor or that he made any express error.  He suggested that the principles of parity of sentence between co-offenders had been offended, but upon close analysis that submission cannot be sustained.  In respect of the more serious offences of which the appellant was convicted, it appears that Ms Hancock was charged with only one of those offences. She pleaded guilty to offences in respect of which the accused was not charged. It is not possible, therefore, to apply the principles of parity. Nevertheless, consistency in sentencing must not be overlooked. It is an important principle of sentencing. Ms Hancock was sentenced to 20 months imprisonment and that sentence was suspended. It appears that she was treated very leniently. While I am unable to say that the lenient treatment given to Ms Hancock would, in itself, justify interference with the sentence imposed upon the appellant, the degree of inconsistency causes me some disquiet.

9. Considered independently of the sentence imposed upon Ms Hancock, in my opinion while the sentence of 36 months can fairly be described as heavy, it was within the range of the Magistrate’s discretion. Although the offences were committed over a relatively short period, the gravity of the appellant’s total criminal conduct was sufficiently serious to justify the total sentence imposed. The Magistrate exercised considerable mercy in fixing a low non-parole period of 12 months. Notwithstanding my disquiet concerning the possible lack of consistency to which I have referred, if it had not been for the error which I am about to discuss I would not have been prepared to interfere with the exercise of the Magistrate’s discretion.

10. The error to which I refer was his Honour’s decision to fix a single sentence of imprisonment in respect of two groups of offences which included offences that are not punishable by a term of imprisonment. The offences of providing false information to second-hand dealers and driving an unregistered vehicle are punishable by a fine. In these circumstances, it was inappropriate to impose a single sentence of imprisonment for those groups of offences. I agree with the views of Duggan J in Hermel v Police (2000) 76 SASR 336 at 337-338:

    “The power to impose one sentence for a number of offences (Criminal Law (Sentencing) Act 1988 (SA) s 18A) was introduced principally to overcome the often awkward and artificial process of constructing an appropriate punishment for a series of offences by means of concurrent or cumulative sentences. Section 18A authorises a total penalty which might exceed the maximum penalty for any one of the offences to which the global sentence is passed, but the sentence cannot exceed the total of the maximum penalties which could be imposed in respect of each of the individual offences. 

    It is my view that, in those cases where a global term of imprisonment is imposed, the individual offences must be punishable by a term of imprisonment.  An offence punishable by way of a fine only cannot be one of the offences in respect of which a term of imprisonment is imposed.” (my emphasis)

11. There is an additional feature of his Honour’s approach to the sentencing that gives rise to a difficulty. Having imposed the various terms of imprisonment which, in their accumulation, amounted to a total head sentence of 46 months, his Honour then purported to reduce that total period by 10 months by reason of the appellant’s plea and co-operation with the investigating authorities. His Honour is to be commended for identifying the specific discount and, from a practical point of view, I agree that a discount of 10 months was appropriate. However, because his Honour had imposed individual sentences of imprisonment, the discount for the plea of guilty should have been given on a particular sentence or sentences. In failing to identify the particular sentence or sentences in respect of which the discount was applied, his Honour was technically in error. Although that error requires rectification, I would not regard it as significant for the purposes of considering the exercise of the sentencing discretion.

12. For the reasons I have explained in connection with the imposition of single sentences, the sentencing discretion has miscarried and I am required to exercise the sentencing discretion afresh.

13. I take into account the report of Mr Fugler.  The appellant was addicted to amphetamine and I will sentence him on the basis that Ms Hancock was the dominant party in their relationship. The offending was serious, but I take into account the relatively short period over which the offending conduct occurred. I accept that the appellant is contrite. As to the appellant’s prospects of rehabilitation, the conclusion to Mr Fugler’s report suggests that the appellant is still using amphetamine. The appellant needs counselling and therapy in respect of his consumption of amphetamine and alcohol.

14. In response to my request for further information, I have received a letter from the appellant’s solicitor in which he states that the appellant’s instructions are that he is not using amphetamines at this time. The appellant apparently agrees that this has been his problem in the past and he has now made an effort to rehabilitate himself and not to use amphetamine. The appellant has not involved himself in any rehabilitative programme since being released as he feels that his life is in limbo until the appeal has been finalised.

15. I have considered the appropriate penalties for the individual offences and, in doing so, I have had regard to the views of the Magistrate as reflected in the individual sentences he imposed. In particular, with respect to the sentences of two months imprisonment imposed for each offence of driving while disqualified, I consider the penalties in their accumulation to be lenient. The appellant had previously served a sentence of imprisonment for driving while disqualified and he admitted driving on occasions other than those charged. His offending was clearly contumacious. I have had regard to the issue of totality and to the need for consistency in penalties between the appellant and Ms Hancock.

16. In respect of the offences of unlawful possession committed on 8 March 2000 and non-aggravated serious criminal trespass committed on 21 March 2000, I have reached the view that a single sentence of 15 months would be appropriate. As to the offence of aiding and abetting Ms Hancock on 13 March 2000 to commit a serious criminal trespass, a sentence of 12 months imprisonment to be served cumulatively upon the 15 months would be appropriate. Considered individually, I would also regard a sentence of 12 months imprisonment as appropriate for the offence committed between 27 March and 2 April 2000 of non-aggravated serious criminal trespass. That sentence should also be served cumulatively upon the other sentences.  Finally, I would impose a sentence of two months imprisonment in respect of each offence of driving while disqualified, each to be served cumulatively upon all other periods.

17. The accumulation of those periods would give a total of 43 months before making allowance for time spent in custody, the plea of guilty and co-operation with the police. I consider 10 months to be an appropriate discount for the plea and co-operation. After allowance for the time spent in custody I will fix a sentence of 31 months imprisonment.

18. I am unable to find that good reason exists to suspend the sentence. The gravity of the appellant’s total conduct, including the two offences of driving while disqualified, is such that I consider a suspension is inappropriate. However, the appellant’s circumstances and my concern about consistency in sentencing have led me to the view that I should fix a non-parole period that is much shorter than usual. I will fix a non-parole period of 10 months.

19. I propose, therefore, to make an order imposing a single sentence of imprisonment in respect of a number of discrete offences which I will identify. The appellant will be convicted of the remaining offences, but no additional penalty will be imposed.

20. The appeal is allowed and the orders of the Magistrate are set aside. In substitution I make the following orders:

    1.      The appellant is convicted on all offences.

    2...... Pursuant to s 18A of the Sentencing Act, I impose a single sentence of 31 months imprisonment in respect of the following offences:

    (i).... Information dated 29 August 2000 - unlawful possession committed on 8 March 2000 and non-aggravated serious criminal trespass in a place of residence committed on 21 March 2000.

    (ii)    Information dated 27 June 2000 - aiding and abetting a serious criminal trespass committed on 13 March 2000.

    (iii).. Information dated 27 April 2000 - non-aggravated serious criminal trespass in a place of residence committed between 27 March and 2 April 2000.

    (iv).. Information dated 2 August 2000 - driving while disqualified committed on 10 July 2000.

    (v)     Complaint dated 9 October 2000 - driving while disqualified committed on 20 September 2000.

    3...... I fix a non-parole period of 10 months.

    4.The head sentence and non-parole period will both commence on 26 March 2001.

    5...... In respect of the remaining offences charged on Information and complaint and before this Court on appeal, no penalty is imposed.