Coulter v Police No. Scciv-03-81

COULTER v POLICE
[2003] SASC 66
Magistrates Appeal

DEBELLE J This appeal against sentence was issued about three weeks late. The appellant applies for an extension of time. Delay was caused by the fact that the solicitor responsible for the matter went on leave omitting to file the notice of appeal. The respondent does not oppose an extension of time within which to appeal. The appellant should not be penalised for the carelessness of his solicitor. The time within which to appeal will therefore be extended until 9 January 2003.
On 28 November 2002 at the Mount Barker Magistrates Court the appellant pleaded guilty to a number of offences. Given the grounds of appeal, it is desirable to set out in detail the offending.
1.On 30 April 2002 at Brukunga received goods to the value of $8000 knowing them to have been obtained by way of a criminal offence contrary to s 196 of the Criminal Law Consolidation Act 1935 (“the Act”).
2.On 28 May 2002 at Crafers entered a residence as a trespasser with the intent of committing an offence contrary to s 171 of the Act.
3.On 28 May 2002 at Crafers stole from the residence, the subject of count 2, fishing gear to the value of $335 contrary to s 131 of the Act.
4.Between 18 June 2002 and 21 June 2002 at Woodside received goods to the value of $2763 knowing them to have been obtained by way of a criminal offence contrary to s 196 of the Act.
5.On 24 June 2002 at Crafers received goods to the value of $1605 knowing them to have been obtained by way of a criminal offence contrary to s 196 of the Act.
6.Between 7 June 2002 and 30 June 2002 at Dawesley entered a non-residential building as a trespasser with the intention of committing larceny contrary to s 169(1) of the Act.
7.Between 7 June 2002 and 30 June 2002 at Dawesley stole from the premises, the subject of the previous count, bottles of wine to the value of $6911 contrary to s 131 of the Act.
8.Between 5 July 2002 and 9 July 2002 at Dawesley received goods knowing them to have been obtained by way of a criminal offence contrary to s 196 of the Act.
9.Between 8 July 2002 and 12 July 2002 at Dawesley received goods to the value of $2000 knowing them to have been obtained by way of a criminal offence contrary to s 196 of the Act.
10.On 11 July 2002 at Nairne entered a non-residential building as a trespasser with the intention of committing larceny contrary to s 169(1) of the Act.
11.On 11 July 2002 at Nairne stole goods to the value of $2007 contrary to s 131 of the Act.
12.On 14 July 2002 at Mount Barker entered a non-residential building as a trespasser with the intention of committing larceny contrary to s 169(1) of the Act.
13.On 14 July 2002 at Mount Barker received goods to the value of $1100 knowing them to have been obtained by way of a criminal offence contrary to s 196 of the Act.
The above offences were all charged on one information. The defendant also pleaded guilty to further charges on a separate information, namely,
1.On 19 July 2002 at Crafers West he entered a non-residential building as a trespasser with the intention of committing larceny contrary to s 169(1) of the Act.
2.That on 19 July 2002 at Crafers West he stole from the premises, the subject of the previous count, goods to the value of $899.
The appellant also acknowledged that he was in breach of a bond into which he had entered on 13 December 2001. The bond was for a period of two years.
All of the offences had been committed while the appellant was subject to the bond to be of good behaviour. The appellant was also on parole for other offences, the period outstanding on the parole being one year, four months and four days.
The magistrate first sentenced the appellant for committing the offences for which the bond had been ordered. He sentenced the appellant to imprisonment for six months to be served cumulatively with the unexpired parole of one year, four months and four days making a total sentence of one year, ten months and four days.
The magistrate then ordered two separate penalties on the information for the thirteen offences committed between April and July 2002. He sentenced the appellant for the offence committed at Crafers on 28 May 2002, together with the offending the subject of the counts numbered 1, 3, 4 and 5 in the above list, a total of five sentences in all. For those offences, the magistrate ordered a period of 18 months imprisonment to be served cumulatively upon the previous sentence. He also ordered another period of imprisonment for 30 months for the offence in the sixth count taking into account the remaining offences a total of nine counts in all. The sentence was to be served cumulatively on the other sentences.
For the two offences committed at Crafers on 19 July 2002 the magistrate sentenced the appellant to 12 months imprisonment to be served concurrently with the sentence of 30 months. Thus, the magistrate ordered a total period of imprisonment amounting to five years, ten months and four days. He fixed a non-parole period of three years and four months.
The appellant appeals against both the head sentence and the non-parole period asserting that they are manifestly excessive on the grounds that the magistrate failed to have adequate regard to the totality principle and failed to specify the reduction to be given for the appellant’s pleas of guilty.
This was a long and sustained course of offending of a serious kind. In the case of the offence committed at Brukunga on 30 April, the second in the list of offences, the appellant had received goods stolen from a Mr Goodwin who had earlier assisted the appellant when he had been in trouble with the police on a number of occasions. This was a very grave breach of the trust which had earlier been reposed in the appellant by Mr Goodwin. As already mentioned, these offences were committed whilst the appellant was subject to a bond and whilst he was on parole. The total value of the goods stolen or received totals almost $25000. There is no evidence of how much of the property has been recovered but it was quite apparent from the victim impact statements that all victims had suffered considerable loss of different kinds. Some of those who have suffered loss are pensioners who could ill afford the loss.
The appellant has a long record of offending dating back to the mid 1970s when he first appeared in the Children’s Court. He is aged 44 years. His record includes many offences for being unlawfully on premises, breaking into premises and stealing. He has served a number of periods of imprisonment.
The appellant has had a number of personal difficulties. In 1998 he contracted hepatitis C. In the same year he suffered various serious head injuries in a motor vehicle accident. In consequence of that accident he suffers some permanent brain damage. In January 2001 his brother died unexpectedly and, some five weeks thereafter, his father died. The appellant thereafter suffered a severe nervous breakdown which led him to attempt suicide. He has also had difficulties with a de facto relationship. The magistrate had regard to all of these personal difficulties of the appellant, as I do.
Dealing first with the question whether the magistrate had regard to the totality principle, it must be noted that in his sentencing remarks the magistrate expressly referred to that principle. He was then explaining to the appellant the sentences which could be ordered for the breaking and receiving offences and demonstrating that a separate penalty for each would result in a very substantial period of imprisonment. He said that he had particular regard to the totality principle. He continued his sentencing remarks by saying that he had regard to all of the appellant’s difficulties and the deaths which had occurred in his family but added that he could not overlook the seriousness of the offending.
Mr Ey, who appeared for the appellant, submitted that although the totality principle was mentioned in the sentencing remarks, the magistrate did not bear it in mind specifically when fixing the head sentence and non-parole period. I do not agree. Although the magistrate did not expressly refer to the totality principle when fixing the head sentence and non-parole period, he placed the offending in groups for the manifest purpose of imposing what he believed to be a proper sentence. I repeat that this was very serious offending over a long period. The appellant was on parole and the goods stolen were of considerable value. In all the circumstances, the sentences imposed for these offences were relatively lenient and that leniency signifies the magistrate had had regard to the totality principle. Separate penalties could have been ordered on each offence but the magistrate did not adopt that course. In addition, he ordered that the sentence for the two offences at Crafers West committed on 19 July 2002 be served cumulatively with the sentences already ordered. The whole approach of the magistrate signifies that he had regard to the totality principle and was applying it in the sentences he ordered.
I turn to the other ground of appeal. Although the magistrate referred to the fact he had regard to the appellant’s pleas of guilty, he did not state what discount he was allowing for the pleas of guilty. It would have been desirable had he done so. This Court and the Court of Criminal Appeal have repeatedly emphasised the desirability of courts stating the sentence which would have been imposed but for the plea of guilty. In this way, the reduction consequent on the plea of guilty can be ascertained.
The failure to state the reduction allowed for the pleas of guilty does not mean that the magistrate failed to allow a reduction for those pleas. As already mentioned, these sentences were relatively lenient. It is obvious that, given the magnitude of the offending, the magistrate has allowed a very substantial discount for the pleas of guilty. This is not a case where there is any difficulty in determining whether an appropriate discount has been given: c.f. Seagrim v The Queen (unreported, 9 December 1994, Court of Criminal Appeal, Judgment No. S4888). In all the circumstances, I am well satisfied that in fixing each sentence the magistrate made an appropriate reduction for the pleas of guilty.
For these reasons, the sentences are not manifestly excessive. The appeal must therefore be dismissed.
The order will be appeal dismissed.

[2003] SASC 66

3 March 2003