DEANE Lawrence Mackley v Bryan Keith Morden No. SCGRG 92/2477 Judgment No. 3739 Number of Pages 3 Justices

[1992] SASC 3739

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Justices - Appeal against refusal to suspend sentence of 7 months imprisonment imposed on breaking and entering and larceny offences - appellant 37 years of age and long record of drunkenness and drink related offences - held that no error demonstrated in the exercise of the sentencing discretion.

HRNG ADELAIDE, 2 December 1992 #DATE 2:12:1992
Counsel for appellant:     Ms K J Tydeman
Solicitors for appellant:    Legal Services Commission
Counsel for respondent:     Mr G Parker
Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 PERRY J This is an appeal against sentences imposed upon the appellant in the Magistrates Court at Christies Beach, following the appellant's plea of guilty to a charge of break enter and steal, and two charges of larceny. 2. The charge of breaking and entering alleged that, on 10 June 1992, the appellant broke and entered a home unit from which he stole items, including a video recorder, to the total value of $290. 3. The first of the larceny charges alleged that on 16 December 1991 he stole a bottle of gin of the value of $21.95 cents from a bottle shop. The second of the larceny charges alleged that, on 8 September 1992, the appellant stole two "mini scrolls" of the value of $9.00, from a shop at Noarlunga Centre. 4. The appellant appeared by counsel before the learned sentencing magistrate who, after hearing submissions, sentenced him to a term of imprisonment for seven months on the breaking and entering charge, and on each of the two larceny counts to terms of imprisonment of seven days. All of the terms of imprisonment were ordered to be served concurrently, with the result that there was a total head sentence of seven months. 5. There is only one ground of appeal, and that is that the learned special magistrate erred in failing to suspend the sentence of imprisonment. 6. The appellant is 37 years of age and has a long record of prior offending dating from 1980, details of which were placed before the learned sentencing magistrate. Most of the previous offences were with respect to charges of drunkenness or related petty offending. There were, however, two previous offences involving dishonesty. The appellant had not previously been sentenced to imprisonment and neither had he been released on a bond. 7. The learned sentencing magistrate was told that, with respect to the charge of breaking and entering, the appellant smashed the rear window of the unit adjacent to his place of residence and took the video recorder and the other items, leaving behind a distinctive "cowboy" type hat. When the owner of the premises returned, he recognised the hat and called the police, as a result of which the appellant was arrested and charged. On arrest it was clear that the appellant was under the influence of liquor. 8. As to the larceny of the bottle of gin, the learned sentencing magistrate was informed that the appellant had been observed in the bottle shop placing it down the front of his shorts. He was apprehended on leaving the store. He said that he wanted to drink the gin and had no money to pay for it. 9. As to the charge of theft of the two mini scrolls, the appellant was observed in the shop from which they were taken, to remove them from the shelf and place them in his jumper, following which he left the store without paying for them. When interviewed he said that he did not have enough money to pay for the items and that he wanted "to give them to his kids". 10. In the course of making submissions for leniency the appellant's counsel put to the learned sentencing magistrate that the circumstances of the housebreak and larceny were unusual. It was suggested that the appellant had himself been robbed twice when items were taken from his own home, and that he suspected the person who was later the victim of the break and entering count. It was put to the learned special magistrate that on the day of the breaking offence the appellant had been drinking very heavily and formed the intention to enter his neighbour's flat to search for evidence that the neighbour had been involved in the robbery of his own place. It was submitted that he had no intention of taking anything when he entered the flat, but succumbed to the temptation of doing so after he had made his entry. 11. In support of the plea for leniency, attention was drawn to the fact that the appellant had been unemployed since 1989, and had an alcohol problem for which he had received counselling. Since his arrest on the housebreaking charge he had stayed off alcohol, and he wanted to return to Victoria where he wished to support his son who lives at Horsham. It was put to the court that the circumstances of the case justified a suspension of any sentence which the magistrate might otherwise have been disposed to impose. 12. During the course of his sentencing remarks the learned magistrate clearly directed his mind to the question of suspension. He said:
    "The worrying thing is that the defendant is an occasional
    thief both when he is drunk and when he is sober. To steal two
    mini scrolls to give to your ten year old as a present suggests
    that the defendant's moral standard is unlikely to improve even
    if he gains control over his alcohol. In my view the housebreak
    warrants a sentence of imprisonment and I cannot find any
    justification to suspend it because I am simply nowhere near
    convinced that the defendant would respond appropriately to that
    leniency. Indeed, I think he would exploit it as he has
exploited his release on bail." The reference to bail arises out of the fact that while the appellant was on bail for one or other of the offences in question, he left the State and failed to appear, following which a warrant for his arrest was issued. 13. Miss Tydeman, for the appellant, has put everything that could be said in favour of the appeal. It is fair to say however that she was not able to identify any error of law or misapprehension of fact on the part of the learned magistrate. Insofar as the discretion to suspend the sentence arises under s.38 of the Criminal Law (Sentencing) Act, she conceded that the discretion is called into play only if there is, a "good reason" for releasing the defendant on a bond. She was driven to suggest that in the circumstances of this case the "good reason" for suspending the sentence was that the appellant had not previously been given a bond, and that the learned magistrate erred in reaching a view that the defendant would not "respond appropriately to that leniency". 14. In my opinion, however, the appellant has not demonstrated any appealable error on the part of the learned magistrate. In determining whether the defendant would, "respond appropriately" to the suspension of a sentence the learned magistrate was clearly entitled to take into account the long history of prior offending with its association with drunkenness. He was also clearly entitled to take into account the appellant's conduct when released on bail. 15. Whether or not a suspended sentence is to be imposed is very much a matter for the discretion of the sentencing magistrate. It is not for this court to interfere simply because it might have taken another view of the matter had it been sitting in the position of the learned special magistrate. 16. I am not satisfied that the refusal by the learned sentencing magistrate to suspend the sentence of imprisonment was erroneous. In my opinion the case demonstrated features which justified the magistrate in taking that course. 17. The appeal is dismissed.