Darren Bruce Pearce v SA Police No. SCGRG 95/2652 Judgment No. 5440 Number of Pages 5 Criminal Law Sentence

[1996] SASC 5440

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Criminal law - sentence - non-parole period - Appeal against sentence - illegal interference with a motor vehicle - six months' imprisonment to commence at expiration of balance of unexpired portion of the sentence for which he was on parole - head sentence 14 months and 24 days - no non-parole period fixed - whether there is a duty to alert an unrepresented defendant to the possibility that a non-parole period will not be fixed - magistrate entitled to view that nothing would be gained by fixing a non-parole period based on the appellant's extenslve criminal history, abuse of parole, failure to answer bail and his apprehension on warrants - prospects of rehabilitation remote parole would have been relatively short - extension of time to institute appeal granted. Criminal Law Consolidation Act, 1985 s 86a; CriminalLaw (Sentencing) Act, 1988ss 32, 32(5), referred to. Cooling v Steele (1971) 2 SASR 249; Ivanoff v Linnane (1979) 20 SASR 279; Barila v Huffa (1978) 18 SASR 226; Martin v Police (1993) 168 LSJS 344, applied.

HRNG ADELAIDE, 17 January 1996 #DATE 17:1:1996 #ADD 11:3:1996

Counsel for appellant:     Mr J Noblett

Solicitors for appellant:    David Stokes and Associates

Counsel for respondent:     Ms J G Olsson

Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 DEBELLE J When this appeal was initially instituted, there were two matters of which the appellant complained. He first complained that the sentence of six months imprisonment imposed was manifestly excessive. He also complained against the decision of the learned magistrate not to fix a non-parole period. He now seeks to prosecute only the second ground.

2. The circumstances giving rise to the appeal are as follows. On 30 August 1995, in the Elizabeth Magistrates Court, the appellant pleaded guilty to a charge of illegal interference with a motor vehicle contrary to s86a of the Criminal Law Consolidation Act 1935. (I note that the complaint asserts that the charge was contrary to s.86 of the Criminal Law Consolidation Act. That is plainly in error.) The appellant was convicted on his plea of guilty and sentenced to six months imprisonment.

3. The appellant had tried to get into a Holden motorcar which was parked at the roadside on Yorktown Road, Elizabeth. He had broken a rear quarter-vent window and had started to jemmy the ignition lock. Damage of about $100 was caused to the motorcar. He was, soon after, apprehended by the police and he made full and frank admissions to them. He said he had broken into the motorcar so that he could drive home. His own vehicle had broken down.

4. The appellant was on parole at the time of the commission of the offence. The magistrate ordered that the sentence of six months imprisonment should commence at the expiration of the balance of the unexpired portion of the sentence for which he was on parole, a period of eight months and 24 days. Thus the total head sentence was 14 months and 24 days.

5. Because the appellant had, in the view of the magistrate, abused his parole, the magistrate did not fix a non-parole period. In determining not to fix the non-parole period, the magistrate also had regard to the fact that the appellant had failed to answer his bail and had been apprehended on warrants. It is to be noted that the complaint required the appellant's attendance in the Elizabeth Magistrates Court on 3 June 1993. Thus, some two years had elapsed before he was apprehended and the matter could be dealt with. That is a very long period in which the appellant has failed to answer his bail.

6. The appellant is aged 27. He has a very poor record. He has continually offended since 1982 except when he has been serving periods of imprisonment. He has committed many offences of dishonesty. He has been convicted on five previous occasions at least for the offence of either illegally using a motor vehicle or illegally interfering with a motor vehicle. One of the offences for which he was on parole itself was the offence of illegal inference with a motor vehicle. The appellant also has a prior history of offending either while on parole or in breach of a bond. It is clear that the appellant has not in any respect learned anything from his previous penalties or, indeed, from the opportunity to rehabilitate himself while on parole.

7. As the appellant had previous convictions for this offence, the penalty for a subsequent offence was a period of imprisonment of not less than three months or more than two years. By his prior record, the appellant had forfeited any claim to leniency. It is apparent from the facts that had he been able to start the car, he would have driven it away. In all the circumstances, the penalty imposed was well within the range of penalties for this offence. It is not very much in excess of the minimum period of imprisonment and, having regard to his previous convictions for this offence, there is no respect in which it could be said that the penalty is manifestly excessive. For those reasons, I think it was very proper, on the part of the appellant, not to press his appeal against the sentence.

8. I turn to the exercise by the learned magistrate of his discretion not to fix a non-parole period. S.32 of the Criminal Law (Sentencing) Act 1988 provides that a court, when ordering a sentence of imprisonment, should fix a non-parole period. That duty to fix a non-parole period is subject to the qualifications in sub-s(5) of s32. In the context of this appeal, the relevant provisions are those in para(c) of sub-s(5) which empower the court to decline to fix a non-parole period if it is of opinion that it would be inappropriate to fix such a period because of:
    (i) the gravity of the offence or the circumstances
    surrounding the offence;
    (ii) the criminal record of the person;
    (iii) the behaviour of the person during any previous
    period of release on parole or,
    (iv) any other circumstance.

9. In Martin v Police (1993) 168 LSJS 344 there is some discussion on the matters to which regard should be had in the exercise of the discretion.

10. Central to the able submissions made by Mr Noblet, on behalf of the appellant, is the contention that the magistrate erred in not informing the appellant, who was unrepresented, that he intended to or was at least contemplating not fixing a non-parole period. The care which should be taken when an unrepresented defendant appears has been emphasised by this court on a number of occasions. The steps which should be undertaken have been outlined in Cooling v Steele (1971) 2 SASR 249 and Ivanoff v Linnane (1979) 20 SASR
279. It is well settled that if a court is considering ordering imprisonment, that the court should so advise the defendant and give him an opportunity of seeking legal advice: see, for example, Cooling v Steele (supra); Ivanoff v Linnane (supra); Barila v Huffa (1978) 18 SASR 226. In my view, like considerations apply where a court is considering whether it should not fix a non-parole period. In one sense, it might be said that the duty of the court to inform a defendant of the likelihood of that course is the greater, given that the usual course is that a non-parole period is fixed where a sentence exceeds a period of 12 months. In this case, the magistrate did not give the appellant that opportunity and I think, in that respect, he erred.

11. It is then necessary to consider what step this court ought to take. Mr Noblet has urged that it would have been appropriate for the magistrate to have ordered a pre-sentence report. That, he says, would have given the magistrate the benefit of the report of a probation officer as to the manner in which the appellant had conducted himself whilst on parole and would give some indication as to whether there were any prospects of rehabilitation. There is considerable force in that submission. If I were to accede to that submission, the proper course would be to allow the appeal against the failure to set a non-parole period and remit the matter to the magistrate, so that he might provide the appellant with the opportunity of making submissions and then deciding whether or not to fix a non-parole period. The allowing of the appeal would not, in any respect, bind the magistrate to an order requiring the fixing of a non-parole period. There are, however, circumstances in this appeal which militate against such a course. I do not think that the failure to warn the appellant necessarily requires that the matter be remitted to the magistrate: cf Barila v Huffa (supra) at 230.

12. As I have said, the appellant has a very poor record, a record which is marked by an almost continual course of offending. It is a record which is also marked by offending whilst on parole or whilst on a bond. The prospects of rehabilitation seem very remote indeed. Further, he did not comply with his bail agreement and absented himself from appearing in court in answer to this charge for a period of some two years and only appeared when arrested on warrants. All of that indicates that the appellant chooses not only not to offend, but chooses not to comply with his legal obligations when apprehended for an offence. In addition, there is nothing in the appellant's affidavit which either explains his failure to answer his bail or provides any indication that there would be any factor which should cause the magistrate to review his decision. Had there been any such fact, one would have expected to have found it in his affidavit. It would be a matter which would aid this court in deciding what ought to be the proper outcome of this appeal.

13. There is a further factor which, I think, militates against sending this matter back to the magistrate. Had the magistrate decided to fix a non-parole period, it would have been relatively long in proportion to the head sentence. In other words, the period of parole would have been relatively short. I say that because of the poor record of the appellant and the fact that on at least two prior occasions his opportunity for rehabilitation had been ignored in that he had offended whilst on a bond or on parole.

14. Having regard to the prior offending, the offending whilst on bond and on parole, and the failure to answer his bail, the learned magistrate was entitled to take the view that he should not fix a non-parole period. In my view, the magistrate was entitled to a view that nothing would be likely to be gained by fixing a non-parole period.

15. I will, in a moment, order that the appeal be dismissed. I should emphasise, notwithstanding the dismissal of the appeal, the desirability, as a general rule, that magistrates inform unrepresented defendants of the fact that they are considering not ordering a non-parole period and giving them the opportunity to seek legal advice.

16. This appeal was instituted almost three months out of time. It appears that an application was made immediately after sentence to the Legal Services Commission for assistance for the purpose of funding the appeal. However, there was an administrative breakdown in the office of the appellant's solicitors in that the reply from the Legal Services Commission was misfiled. That, in turn, led to further enquiries as to what was the outcome of the application. In the result, it was some time before it was discovered that the application had been granted. Upon that fact being ascertained, steps were then promptly instituted for the purpose of obtaining the necessary information with which to institute the appeal. The delay is not as great as occurs in some other cases. The appellant should not be penalised for the negligence of his legal advisers.

17. It is relevant, when determining whether an extension of time should be granted, to have regard to the prospects of success of the appeal. Had the appeal been limited to the appeal against sentence, there would have been no prospects of success and that would have been a factor telling against an extension of time. This appeal raised, I think for the first time, the question whether there is a duty upon magistrates to alert unrepresented defendants to the possibility that they will not fix a non-parole period. As is apparent from these reasons, I think there is such a duty. Although, in the upshot, the appellant has failed, I think the issue is one which would, in other circumstances, have been of considerable merit. For that reason, and because it does raise an important issue of principle, I think in all the circumstances it is proper to extend the time within which the appeal could be instituted. There will, therefore, be an order extending the time of the institution of this appeal until 8 December 1995.

18. There will, therefore, be orders
    1. Order extending the time for the institution of this
    appeal until 8 December 1995.
    2. Appeal dismissed.
    3. No order as to costs.