Coulthard & Reinertsen v Police No. Scciv-03-320, Scciv-03-325

COULTHARD AND REINERTSEN V POLICE
[2003] SASC 125
Magistrates Appeal (Criminal)

LANDER J. These appeals from sentences imposed in the Magistrates Court on 19 February 2003 have been heard together, as were the sentencing submissions which were put before the Magistrate. In both appeals the appellants complain that a sentence imposed on each of them by a magistrate, sitting at Leigh Creek, was manifestly excessive.
The appellants were jointly charged on information that on 31 January 2003 at Leigh Creek they intended to damage the property of another person NRG Flinders, namely, a pool vacuum cleaner, and caused damage amounting to more than $2500 but not more than $30,000 contrary to s 85(3) of the Criminal Law Consolidation Act, 1935 (SA).
They were separately charged that on the same day, at the same place, they also caused damage to sprinklers, also the property of NRG Flinders, which damage did not amount to more than $2500; again contrary to s 85(3) of the Criminal Law Consolidation Act.
The matter came on before the Magistrates Court at Leigh Creek and both appellants were represented by counsel. The prosecution case was that some time between 12 am and 1.30 am, the appellants damaged the pool vacuum cleaner at the Leigh Creek swimming complex and upon leaving that complex they damaged a number of sprinklers on the Leigh Creek town oval adjacent to the pool area. It was the prosecution case before the Magistrate that the combined damage caused by the actions of the appellants was approximately $7,400.
The prosecution alleged that the appellant, Mr Coulthard, had admitted that after a few drinks he and the appellant, Mr Reinertsen, decided to go for a swim in the Leigh Creek swimming pool. They climbed a fence and entered the pool complex. Mr Coulthard turned off the pool vacuum cleaner and took it out of the pool and left it on the edge. A short time later, Mr Reinertsen picked up the vacuum cleaner and either threw it or dropped it on the pool edge, smashing it before returning it to the water.
The appellants then left the pool complex and as they walked across the oval, Mr Reinertsen decided to kick the tops off sprinklers causing water to shoot skywards. Mr Coulthard also admitted that he stood on about three sprinklers and twisted their tops causing them to break off and shoot skywards.
The prosecution case was that Mr Reinertsen admitted to damaging the swimming pool vacuum cleaner, and he also admitted to being on the town oval whilst he and the appellant, Mr Coulthard, damaged the sprinkler heads.
Mr Tamblyn, who represented the appellant before the Magistrate, has deposed in an affidavit relied upon by the appellants in this appeal, that he submitted to the Magistrate that these offences occurred when both appellants were drunk. He said that he submitted to the Magistrate that at about midnight the appellants decided to go down to the local outdoor swimming pool to cool off. They climbed the fence but before entering the water Mr Coulthard removed the cleaner from the pool and put it to the side. After they had completed swimming, Mr Reinertsen grabbed the pool cleaner with the intention of putting the cleaner back in the pool but, when he threw the cleaner towards the water from a distance, it fell short and smashed. He asked the Magistrate to sentence on the basis that the appellants’ actions were reckless and that Mr Coulthard’s involvement was minimal and secondary to that of Mr Reinertsen.
Lengthy submissions were made on behalf of the appellants before the Magistrate and, during those submissions, the Magistrate indicated that he was considering imposing a term of imprisonment and that in those circumstances the appellants’ counsel might wish to put a trifling application to him. I am not sure what is meant by ‘trifling application’, but both counsel addressed the Magistrate as to whether the offence was trifling.
The Magistrate said in his sentencing remarks:
“Mr Coulthard and Mr Reinertsen, this incident should be viewed seriously. In your drunken state you caused a great deal of damage to public recreational assets in the small community of Leigh Creek, $5,000 damage to a pool cleaning machine at the swimming pool and $2,400 damage to a set of sprinklers on a nearby recreational area. You were drunk at the time. That is relevant in as much it indicates that you did not set out that evening deliberately to do this. It is something that happened on the way home after you decided that you wanted to have a swim, but if you cannot control your behaviour to prevent such things happening when you drink alcohol, you need to think seriously about whether you should drink alcohol.”
The Magistrate acknowledged in his sentencing remarks that Mr Reinertsen played a much more significant role with regard to the damage to the pool equipment but, on the other hand, found that both were equally culpable in relation to the damage to the sprinklers.
He convicted the appellants on both counts. He sentenced Mr Coulthard to imprisonment for a period of five months but suspended the term of imprisonment upon Mr Coulthard entering into a bond to be of good behaviour for 12 months in the amount of $500.
He sentenced Mr Reinertsen to imprisonment for six months but suspended that period of imprisonment upon Mr Reinertsen entering into a bond in the amount of $500 to be of good behaviour for 12 months.
He ordered that both appellants be under supervision and that they comply with all reasonable directions of the probation officers supervising them. In particular, he ordered that they comply with directions to attend courses for alcohol rehabilitation and counselling.
He ordered each appellant to pay $2500 by way of compensation in relation to the damage to equipment in count one. He further ordered each appellant to pay the sum of $1200 by way of compensation in relation to the damage to equipment in count two.
Both appellants claim that the sentence of imprisonment imposed on each of them was, in the circumstances, manifestly excessive.
The maximum penalty for an offence of property damage under s 85(1) of the Criminal Law Consolidation Act, where the damage is less than $2,500, is a term of imprisonment not exceeding two years, and where the damage exceeds $2,500 but is less than $30,000, a term of imprisonment not exceeding three years.
The appellants are both Aboriginal males and are cousins.
Mr Coulthard was born on 12 July 1983 and was 19 at the time the offence occurred. He had no previous convictions. He was born and raised in Balcoona, which is 100 kilometres east of Leigh Creek. At the time the offence was committed, he was undertaking a six week Kidmans course through the Spencer Institute of TAFE in Port Augusta to become a qualified station-hand. He was then in receipt of $140 per fortnight, youth allowance, from Centrelink. He offered to pay compensation for the damage done.
The Magistrate was told that Mr Coulthard was a person who had good job prospects. He has apparently been assured that when he completes his course, he will have no trouble finding work in south-western Queensland.
Mr Coulthard made full and frank admissions to the police and pleaded guilty at the first available opportunity.
Mr Reinertsen was born on 1 August 1982 and was 20 years of age when these offences were committed. He has one previous conviction, but for the traffic offence of driving a motor vehicle which was unregistered and uninsured. That previous conviction is hardly relevant in relation to these matters. He is a single man and lives by himself in a unit in Leigh Creek. At the time of the offences, he was employed full-time by a cleaning company, working five days per week one week and seven days per week the next. He was in receipt of an income of about $800 per fortnight.
The Magistrate was told that his intention was to move to Port Augusta to undertake a literacy and numeracy course at the Spencer TAFE in order to improve his prospects of advancing his career.
He also made full and frank admissions and pleaded guilty at the first available opportunity. Like Mr Coulthard, he offered to pay compensation for the damage done.
Section 11 of the Criminal Law (Sentencing) Act 1988 (SA) provides that a sentence of imprisonment may only be imposed if one of the placita in para.(a) of s 11 is made out. It is clear that none of ss 11(1)(a)(i), (ii) or (iii) have any application to these appellants and, therefore, if a sentence of imprisonment was to be imposed, it could only be imposed if any other sentence would be inappropriate having regard to the gravity or circumstances of the offence; or if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in s 10(2) of the Act.
Ms Richardson, who appeared for the police on this appeal, submitted that the Magistrate must have been satisfied, in the circumstances of this case, that no other sentence would be appropriate having regard to the gravity or circumstances of the offence except a sentence of imprisonment. I think that argument is right.
I think clearly the Magistrate must have acted under s11(1)(a)(iv) of the Act. The question is whether, in the circumstances, the Magistrate was right to form the judgment that no other sentence, apart from a sentence of imprisonment, would be appropriate in the circumstances of this case.
These were, as Ms Richardson has argued, serious offences and they were offences of a kind which would have an effect on a local community. Significant damage was done to public recreational assets. There was clearly, as has been submitted by the police, a need for general deterrence. However, in my opinion, notwithstanding all of those matters, the Magistrate erred in concluding that no other sentence would be appropriate other than a sentence of imprisonment. It is not to the point that these sentences were suspended. The question remains whether or not a sentence of imprisonment was appropriate.
In this case, the appellants have both offered to pay compensation. The Magistrate ordered that each pay compensation in the sum of $3,700.
On this appeal, the police conceded that the actual damage suffered was $6,400. Both appellants still offer to pay compensation and, in those circumstances, the order for compensation must stand but must be reduced so that it reflects the liability on the part of each of the appellants to pay $3,200.
I raised with the appellants’ counsel whether s 13 of the Sentencing Act precluded a compensation order being made, especially in Mr Coulthard’s case, but I was advised by counsel that his instructions were that the appellants wished to pay compensation. In those circumstances, I’m not precluded by s13, inasmuch as I have not reached the requisite level of satisfaction that the appellants would be unable to comply with the order.
Bearing in mind that compensation is to be paid, that is a matter, in my opinion, to which regard must be had in assessing the appropriate penalty: E v Police (1996) 66 SASR 492.
In circumstances where two young men, of previous good character, who made full and frank admissions, entered an early guilty plea and who have offered to pay compensation for the damage caused, in my opinion, a bond would be an appropriate penalty. Because Mr Reinertsen’s culpability was somewhat greater, the length of his bond should reflect that culpability.
I would allow the appeal and set aside the orders made by the Magistrate.
In lieu thereof, I would order each appellant to pay the sum of $2600 compensation in respect of the damage caused in count one and each appellant pay the sum of $600 in respect of the damage caused in respect of count two. That imposes a total liability of $3200 on each of the appellants to pay compensation.
The convictions must stand.
I would release Mr Coulthard on a bond to be of good behaviour in the sum of $500 for a period of 18 months; to be under supervision and to comply with all reasonable directions of the probation officer supervising him. In particular, he is to comply with directions to attend courses for alcohol rehabilitation and counselling.
In respect of Mr Reinertsen, I would release him on a bond in the sum of $500 for a period of two years; also to be under supervision and to comply with all reasonable directions of the probation officer supervising him. He also must comply with directions to attend courses for alcohol rehabilitation and counselling.
The appeal will be allowed for the purpose of making those orders.

[2003] SASC 125

29 April 2003