Corak v Police

[2006] SASC 172

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

CORAK v POLICE

[2006] SASC 172

Judgment of The Honourable Justice Vanstone

20 June 2006

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE

Appellant pleaded guilty to six offences in Magistrates Court - single term of 16 months imprisonment imposed for the four most serious offences - made cumulative upon balance of an earlier sentence - appeal against sentence - whether sentence manifestly excessive - whether Magistrate erred in failing to give adequate reasons for sentence - reasons found to be inadequate.  Appeal allowed.

Criminal Law (Sentencing) Act 1988 (SA), s 9, s 18A; Correctional Services Act 1982 (SA), s 32(3), referred to.
R v Harris & Simmonds (1992) 59 SASR 300; R v Place (2002) 81 SASR 395; R v Powell (2001) 81 SASR 9; Papastamitis v Police [2003] SASC 102; Cross v Police [2001] SASC 47; Szewczuk v Police [2001] SASC 223; Hodgson v Police [2002] SASC 35; Peters v Police [2004] SASC 284, considered.

CORAK v POLICE
[2006] SASC 172

Magistrates Appeal

1. VANSTONE J:  The appellant pleaded guilty in the Magistrates Court to a total of six offences committed on two occasions some five months apart.  In respect of the four most serious offences the Magistrate fixed one term of imprisonment, which was made cumulative on the balance of an earlier sentence which the appellant was then serving.  A non-parole period was fixed in respect of the combined total.  Upon appeal it was argued that the new head sentence was manifestly excessive and also that the Magistrate erred in law in failing to give adequate reasons for the sentence fixed.  The other orders made were not subject of the appeal.  An application to extend the term within which to appeal was not opposed.

   Background

2. The earlier of the offences before the Magistrate were driving under disqualification and failing to comply with a request to stop a vehicle, both occurring in March 2005.  Then in August 2005 the appellant committed two offences of illegal interference with a motor vehicle, unlawful possession of various keys and giving a false name and address.  In respect of the failing to comply with a request and the giving of false particulars, the Magistrate convicted without penalty.

3. The driving whilst disqualified offence was detected near a shopping centre.  The appellant was driving his own vehicle.  Upon the plea, his counsel put forward what seems to me, with respect, to have been a rather unlikely explanation for commission of the offence.  However that explanation was not challenged by the prosecutor and in the absence of any comment must be taken to have been accepted by the Magistrate.  For reasons which will appear, that explanation might not have been afforded much mitigatory effect.  Because this was not the first such offence committed by the appellant, the maximum penalty was two years imprisonment.

4. The offences of illegal interference occurred nearby to each other and within a fairly short space of time.  Another offender took part in at least one of them.  The offences consisted of tampering with the locks of and gaining entry into two parked vehicles.  The appellant was probably utilising the collection of various keys with which he was found on that occasion.  Since these offences were not the first of their type committed by him, the penalty range for each was between three months and four years imprisonment.  The maximum penalty for unlawful possession was a $10,000 fine or imprisonment for two years. 

5. At the time of all this offending the appellant was on parole for offences of illegal use, theft and driving under disqualification.  He had been convicted of those offences in September 2004 and sentenced to 15 months imprisonment.  Indeed, even at the time of those offences, he had been on parole for earlier offences, including four counts of driving under disqualification.  All in all, the appellant’s criminal history includes more than 20 offences of driving under disqualification.  His parole on the September 2004 offences was cancelled by the Parole Board on 11 August 2005.  The balance still to be served at that date was some eight months and twenty-four days. 

6. The sentence imposed by the Magistrate for the four more serious offences before him was sixteen months imprisonment.  That term was made cumulative upon the unexpired balance of the previous sentence and a non-parole period of thirteen months was fixed in respect of the total and was to run from 11 August 2005.

   Analysis

7. It is convenient to first deal with the complaint alleging that the Magistrate failed to give adequate reasons for the sentence. The remarks of the Magistrate ran to seven paragraphs. In the first, the Magistrate indicated that for the more serious offences he would utilise s 18A Criminal Law (Sentencing) Act 1988 to impose one penalty.  In the second paragraph he announced that penalty.  In paragraph 3 the Magistrate informed the appellant of the circumstances of a young woman who had apparently appeared before him on that morning in relation to failure to complete a court order of community service.  The Magistrate spoke of that woman’s progress towards rehabilitation.  In the fourth paragraph he contrasted such progress with the unfulfilled hopes of the appellant, as had been outlined in submissions.  In the fifth paragraph the Magistrate challenged the appellant to “follow her example”.  He then told the appellant that the crucial factor was determination.  In the final paragraph he imposed the necessary licence disqualification period. 

8. The appellant makes no complaint about the brevity of the remarks upon sentence. Indeed, much can be said in the three-quarters of a page or so which the seven paragraphs occupied. The real complaint is that, contrary to the requirements of s 9 of the Criminal Law (Sentencing) Act, no reasons for the sentence were given.  In particular, there was no indication of which of the four offences attracting the sentence was seen to be the most serious.  There was no confirmation as to acceptance of what I have called the “rather unlikely” explanation for the driving whilst disqualified.  Whilst counsel for the respondent properly conceded that the penalty imposed was, in all the circumstances “a high one”, the Magistrate did not attempt to place any of the offences upon any scale of seriousness and, in respect of the driving disqualified offence, did not say whether, notwithstanding the explanation offered by the appellant for it, he considered it to be contumacious.  Nor was there any reference to the fact that the appellant was on parole at the time of the offences, or otherwise to his personal circumstances.  In summary, if the sentence imposed is seen to be a severe one having regard to the facts of the offences, then no explanation was provided as to what particular features of the case dictated that. 

9. A further significant deficit was the failure to mention the appellant’s pleas of guilty and to quantify the credit given for them.  The desirability of doing as much has been stressed in this Court over many years:  R v Harris & Simmonds (1992) 59 SASR 300;  R v Place (2002) 81 SASR 395. However failure to do so is not an error of law: Place at 425; R v Powell (2001) 81 SASR 9, 13 per Prior J; Papastamitis v Police [2003] SASC 102, [30] per Duggan J. The appellant was not frank with police upon being apprehended for these offences. However, it was acknowledged by counsel on both sides that the appellant’s pleas of guilty were entered at an early stage of the proceedings and should have attracted a discount of something like 20 per cent. If given here, such a discount would have indicated a starting point of 20 months imprisonment.

10. In cataloguing the range of matters not mentioned by the learned Magistrate in his remarks, I do not imply that it was necessary for him to address each and every one of them.  The extent to which a court must outline the factors which have carried weight with it is no easy matter to define.  Furthermore it has generally been accepted that magistrates should not be expected to give detailed reasons in relation to fairly routine matters attracting routine penalties:  Cross v Police [2001] SASC 47, [28] per Olsson J. The extent to which a magistrate must justify the disposition of a matter is a topic upon which fair minds may differ. (See, for example, Szewczuk v Police [2001] SASC 223 per Lander J; Hodgson v Police [2002] SASC 35 per Doyle CJ; Peters v Police [2004] SASC 284 per Nyland J.) But the provision of reasons is important from the viewpoints of the offender, the victim and the community at large and, further, helps to enable the appellate court to perform its role of reviewing the sentence.

11. The extent of elaboration required will vary markedly from case to case.  For example, where a magistrate deals with a single offence not attended by any unusual features, where there are no factual disputes and where the offender will not be sentenced to a term of imprisonment, little by way of explanation would be required.  However, in the case upon appeal, my view is that the Magistrate was obliged to disclose to the appellant something of his reasoning process.  Whilst I do not doubt that the Magistrate was well intentioned in explaining the circumstances of the other offender’s case, I do not consider that should have been allowed to take the place of communicating what the Magistrate saw as the important features of the appellant’s own case.

12. In the circumstances I find that the Magistrate fell into error and that the sentence, though valid according to s 9(2) Criminal Law (Sentencing) Act, is wrong in law.  Accordingly I propose to sentence afresh. 

13. I should say a little more about the appellant’s personal circumstances.  He is 43 years of age.  He has a long history of court appearances on a variety of charges.  He has served periods of imprisonment, usually on account of driving offences.  It appears that over a long period the appellant has used illicit substances.  He has suffered a number of personal tragedies which have not been satisfactorily addressed by treatment.  He has recently taken some tentative steps to at least ascertain what programmes might help him once released.  It seems to me that Mr Corak is very far from being a hopeless case. 

14. In my view the most serious offence is that of driving disqualified.  That is so because of the quite alarming number of occasions on which the appellant has committed the same offence.  This is truly a contumacious offence.  There was no challenge to the account of events leading to the offence (which account I need not detail) and so I accept it.  But it can have little impact on the sentence when seen against the background of prior similar offending.   The fact that all offences were committed whilst he was on parole is an aggravating circumstance.  I do not view the illegal interference offences as particularly serious examples of that offence, but they were plainly planned and systematic. 

15. As a means of indicating my view of the seriousness of the various charges and in order to reveal my reasoning process I propose to ascribe notional sentences to each offence. I will take as my starting point for the offence of driving disqualified a period of imprisonment of 12 months. On each illegal interference offence I would start with a sentence of three months imprisonment. On the unlawful possession offence I would impose two weeks imprisonment, but the last three sentences would be served concurrently, but cumulatively upon the 12 months, giving a total of 15 months. I would allow a discount of 20 per cent to reflect the early pleas of guilty, leaving a term of 12 months imprisonment. Using s 18A Criminal Law (Sentencing) Act for those four offences I impose that term upon the prisoner.  That term is to be cumulative upon the unexpired balance of the previous sentence now being served, giving a total sentence to be served of 20 months and 24 days. 

16. I am required to fix a non-parole period in respect of that total period: s 32(3) Correctional Services Act 1982.  The period I fix is 12 months to commence on 11 August 2005.  That non-parole period is a relatively low proportion of the entire term to be served, especially having regard to the appellant’s failure to take advantage of previous periods of parole.  In fixing such a low period I am rather constrained by the period fixed by the Magistrate.  However, in addition, as I have indicated, there is some indication that the prisoner will renew his efforts to rehabilitate himself upon his release.

17. The orders relating to the two offences for which no penalty was imposed will stand, as will the order relating to licence disqualification.

18. The orders I make are as follows:

    1.the time within which to appeal against the sentence is extended to 14 February 2006;

    2.the appeal is allowed;

    3.the Magistrate’s sentence of 16 months imprisonment is set aside;

    4.in its place and using s 18A Criminal Law (Sentencing) Act to impose one sentence in respect of the four offences I sentence the appellant to a period of 12 months imprisonment to commence at the expiration of the unexpired balance of the appellant’s previous sentence;

    5.in respect of the unexpired balance and the sentence now imposed, I fix a non-parole period of 12 months, which is to be taken to have commenced on 11 August 2005.