Coombs v Police No. Scciv-03-302

COOMBS V POLICE
[2003] SASC 100
Magistrates Appeal

LANDER J. The applicant was charged that on 5 November 2002 he was in possession of housebreaking equipment.
On 11 February 2003 he pleaded guilty and was sentenced to be imprisoned for a period of six months. The prosecution did not pursue a second charge which was dismissed. At the time of commission of the offence the appellant was on parole in relation to previous convictions.
The unexpired period of parole was two years, one month and 23 days.
The Magistrate fixed a new head sentence of two years seven months and 23 days and set a non-parole period of 20 months.
The appellant now appeals against the sentence of imprisonment for six months and the setting of a non-parole period of 20 months.
He complains that both the sentence and the non-parole period are manifestly excessive.
The appellant was located by police walking along a road at Ingle Farm. He was found in possession of a scanner with earphones which monitored police radio frequencies, a pick-lock, three screw drivers, a torch, side cutters, multi tool pliers, a set of six Ford car keys, packing tape and abrasive tape. When the appellant was searched, the earphones were found to be attached to a radio scanner monitoring police radio frequencies, and a list of radio codes used by police was found in his pocket.
The appellant was interviewed by police and admitted that he was carrying the items for the purpose of breaking into a house or car to raise funds to pay off a debt.
It was put to the Magistrate that shortly prior to the offence being committed the appellant had consumed what he believed to be amphetamines but which he subsequently discovered was a drug called “Special K”. He experienced hallucinations, flashing lights and had trouble walking. He also had blurred vision and distorted hearing.
The appellant was born on 17 May 1968 and was aged 34 at the time of commission of the offence. The appellant’s counsel submitted that the appellant had the care of his two and a half year old son. Moreover both of the appellant’s parents were quite ill. His father was suffering dementia. He had suffered seven strokes in the past two years. His mother was suffering from heart problems and was finding it difficult to cope.
It was submitted that the appellant had employment waiting for him at Salisbury Cheap Cars.
The Magistrate was informed that the appellant had already spent three months and six days in custody which it was submitted was sufficient penalty for the offence.
It was submitted to the Magistrate that if an immediate term of imprisonment was imposed then the unexpired portion of the appellant’s parole would be activated.
In those circumstances it was submitted that the Magistrate should consider imposing a suspended sentence rather than an immediate sentence of imprisonment.
The appellant raised three matters on appeal.
First, the appellant complained that even though the appellant had pleaded guilty, the Magistrate did not recognise that plea in the sentence imposed.
It is true, as the appellant complained, that the Magistrate did not expressly state that he was taking into account the appellant’s plea in fixing the sentence or indeed fixing the term of the sentence of imprisonment. He should have done this, but his failure to do so is not in itself an error: R v Powell (2001) 81 SASR 9 at para 21.
The absence, in the Magistrate’s remarks, of reference to a discount and the failure to disclose the discount make it difficult to determine whether an appropriate and adequate discount has been given. Where the sentence is severe it tends to suggest that the Magistrate may have overlooked giving an appropriate discount for the plea: R v Seagrim (Unreported: CCA 9 December 1994, Judgment Number S4888).
The absence of reference to a discount obliges me to examine the sentence to determine whether the Magistrate gave the appellant credit for his plea.
Secondly it was put that the Magistrate must have inadvertently assumed that the second charge, which was not proceeded with, was also a matter for sentence. The Magistrate said in his remarks as to penalty:
“I take into account the time spent in custody. The defendant will be convicted in relation to these offences and sentenced pursuant to s 18A of the Sentencing Act to a period of imprisonment of six months.”
It was submitted that the reference to “these offences” and s 18A indicates that the Magistrate wrongly assumed the defendant was to be sentenced for more than one offence.
Clearly there was a slip on the part of the Magistrate. The question is whether it was only a slip. In other parts of his remarks he clearly understood that he was sentencing the appellant in respect of only one offence. Earlier in his reasons he said:
“He was again released on parole and he now comes before the Court charged with this particular offence.”
Later he said:
“In my view, there are no proper grounds for suspending any period of imprisonment. The only appropriate penalty, in my view, in respect of this matter is a further period of imprisonment.”
I accept, of course, that the Magistrate made an error in referring to “these offences” and s 18A of the Sentencing Act 1988 (SA). If it had only been a reference to “these offences” I would have been satisfied that what was said was only a slip. However I am persuaded that the reference to s 18A of the Sentencing Act indicates that when the Magistrate passed the sentence he had overlooked the fact that one of the charges had been withdrawn and he was sentencing only in respect of one charge. He would not have made reference to s 18A of the Sentencing Act if he was imposing a sentence in respect of one offence.
Both counsel agreed that if I concluded that the Magistrate had fallen into error I should re-sentence the appellant. That seems to me to be the appropriate course.
This was a very serious offence. The appellant was detected in possession of housebreaking implements and a police scanner. In fact, he admitted that he intended to commit a criminal trespass or illegally interfere with a motor vehicle.
As the Magistrate correctly said, the appellant has “an appalling record for dishonesty and similar types of offending.”
He has a number of convictions for unlawful possession, receiving, larceny and offences for break and enter.
At the time the previous sentence was imposed the appellant was also on parole.
The appellant has thus come before the courts on two occasions in circumstances where he was on parole at the time he was sentenced.
It was put, during the appeal, that the sentence imposed by the learned Magistrate was manifestly excessive and that he could not, in the proper exercise of his sentencing discretion, have imposed a sentence of six months imprisonment for this offence.
Mr Ey contended that the starting point for this offence, in the circumstances to which I have adverted, would have been in the order of six months imprisonment. From that he said the Magistrate should have discounted the sentence for the guilty plea and then recognised the time spent in prison awaiting sentence.
I do not agree with the starting point.
Parliament has made it clear, beyond doubt, that it expects persons who commit serious criminal trespass to be sentenced to an appropriately severe period of imprisonment. For example, a person who commits a serious criminal trespass in a place of residence will be subject to a maximum penalty of imprisonment for 15 years. If that person commits that serious criminal trespass in circumstances of aggravation that person may be imprisoned for life. A serious criminal trespass in relation to a non-residential building carries a maximum penalty of 10 years imprisonment and if committed in circumstances of aggravation, a maximum penalty of 20 years imprisonment.
The appellant was carrying the items which comprised the subject matter of the charge for the purpose of committing a criminal trespass.
He is not, of course, to be sentenced on the basis that he committed a serious criminal trespass. He is only to be sentenced on the basis that he has been convicted of possessing, at night, house breaking equipment. Because he has previously been convicted of other offences to which s 171 applies the maximum penalty for this offence was 10 years imprisonment: s 171(5). The purpose of s 171 is to allow the authorities to apprehend persons who intend to commit trespasses.
If the Magistrate gave the appellant any credit or discount for his guilty plea the Magistrate must have started with a term of imprisonment of 12 months. That, in my opinion, is an appropriate starting point.
I would give the appellant a reduction in sentence in the order of 25 per cent for his guilty plea and also credit him with the three months and six days which he spent in custody pending sentence.
Applying that approach, in my opinion, an appropriate sentence is six months imprisonment. Therefore, for reasons which may differ from the Magistrate’s I would reach the same conclusion as he did.
Like the Magistrate, I would not suspend the sentence of imprisonment. The Sentencing Act provides for sentences of imprisonment to be suspended where “good reason” exists for doing so. It was contended on this appeal that the sentence of imprisonment should be suspended because otherwise the appellant would have to face serving some part of the unexpired period of parole.
In my opinion that is not a good reason or indeed any reason why this sentence should be suspended. The fact that the appellant was on parole at the time that he committed this offence is a reason, in my opinion, for not suspending the sentence of imprisonment. As Mr Williams, who appeared for the Police said, the integrity of the parole system must be preserved. The parole system provides for a person’s release whilst that person is of good behaviour. It assumes that, if the person commits a crime punishable by imprisonment whilst on parole, the person will become liable to serve the unexpired period of parole.
There is no good reason in this case why this sentence should be suspended and I decline to do so.
That means that the appellant will have to serve the accumulation of the period of imprisonment which I have imposed and the unexpired period of parole namely two years, one month and 23 days; a total of two years, seven months and 23 days.
A non parole period must be fixed.
When this appellant was originally sentenced for the crime in respect of which he was on parole at the time of this offence, the court set a non parole period of 14 months.
In setting a non parole period in relation to the whole of the head sentence, regard has to be had again to the fact that the appellant pleaded to this offence and that he has actually served in excess of three months by way of penalty for this offence.
The Magistrate fixed a non-parole period of 20 months which is a little under two thirds of the sentence of imprisonment.
I think the appellant’s prospects of rehabilitation are slight, almost negligible. That is evidenced by the fact that he committed this offence whilst on parole and he has committed other offences whilst on parole.
During argument I thought that perhaps the non parole period set by the Magistrate was too severe but on reflection, and for the reasons already given, I think a non parole period of 20 months probably fairly reflects the appellant’s criminal behaviour, his personal circumstances and his prospects of rehabilitation.
For those reasons, even though I think that the Magistrate may have fallen into error in the sentencing process, I do not think the actual sentence he imposed was wrong.
I would dismiss the appeal.

[2003] SASC 100

16 April 2003