Deas v Police No. Scgrg-98-872 Judgment No. S6789

[1998] SASC 6789

DEAS  v  POLICE
[1998] SASC 6789

Magistrates Appeal
Bleby J

1. This is an appeal against sentence. The appellant pleaded guilty in the Magistrates Court sitting at Elizabeth to one count of disorderly behaviour contrary to s7 of the Summary Offences Act 1953, one count of illegal interference with a motor vehicle contrary to s86A of the Criminal Law Consolidation Act, 1935 two counts of building breaking and larceny contrary to s170(1) of the Criminal Law Consolidation Act, 1935 two counts of giving a false name and address to a member of the police force contrary to s74A(3)(b) of the Summary Offences Act 1953, one count of damaging property contrary to s85(3) of the Criminal Law Consolidation Act, 1935 one count of providing false information on a bail application contrary to s22 of the Bail Act 1985 and one count of assault occasioning actual bodily harm contrary to s40 of the Criminal Law Consolidation Act, 1935.  The offences all occurred between 29 November 1997 and 4 February 1998.  The sentences were passed in the Magistrates Court on 3 June 1998. 

2. I received an affidavit of Robert Bruce Harrap sworn on 26 June 1998 as to the conduct of the defence case in the Magistrates Court and as to what the sentencing magistrate was told about the appellant's past record.  There was no formal antecedent report tendered.  I also received an affidavit of Jayanthi McGrath sworn on 17 July 1998 setting out in summary form the case for the prosecution.  The respondent also sought to rely on a further affidavit of Shaun Clough sworn on 31 July 1998, which sought to exhibit the full antecedent report and which also exhibited a report of the Parole Board indicating that the appellant was on parole at the time of these offences.  The latter portion was not objected to.  The former portion in relation to the antecedent report was, and the tender of that part of the affidavit was subsequently withdrawn.  I will say more about the question of parole in due course. 

3. It appears that all of the offences were committed whilst the appellant was under the influence of alcohol or drugs or both.  I will deal with the facts pertaining to each of the offences in chronological order: first, the offence of disorderly behaviour.  This offence occurred on 29 November 1997 in Rundle Mall at about lunchtime.  It appears that a companion of the appellant initiated a fight with another person.  The appellant was observed by police to be standing at approximately 5 metres from the actual fight, facing the crowd.  He was seen raising his right hand and throwing a glass object, which proved to be a glass ashtray, to the ground.  The police also heard the accused shout 'You fucking cunts' and at one stage observed him kicking a tree.  Witnesses interviewed by police corroborated that version of events, one witness adding that at one point the appellant had himself commenced picking fights with other people in the immediate vicinity.   The sentence imposed by the sentencing magistrate was three months' imprisonment, to commence on 4 February 1998, the date on which the appellant was taken into custody.  The maximum penalty for that offence is three months' imprisonment or a fine of $1,000. 

4. The offence of illegal interference with a motor vehicle occurred on 3 December 1997. The complainant was the registered owner of a Harley Davidson motorcycle. He had parked his motorbike in the car park at the Royal Adelaide Hospital late on the previous evening. Upon doing so, he had placed a cover over it and clipped it in position. At about 3.40am a security officer named Jones observed the appellant leaning over the motorcycle. He also saw him pull down on the right mirror with great force. Jones and another security guard approached the appellant but he fled. At one stage the appellant threw a silver object in the direction of the two security guards, which was later found to be the petrol cap of the motorcycle. The owner of the motorcycle was subsequently summoned by hospital security, and upon returning to his motorcycle, he found that the petrol cap had suffered a small dent and that the cover had been removed. Damage to the bike was estimated to be $90. Police attended a short time later and arrested the appellant. He initially denied that he had done anything untoward, admitting only that he had stood close to the bike for the purpose of admiring it. The sentence imposed by the sentencing magistrate was two months' imprisonment, cumulative upon the previous sentence, together with a suspension of the appellant's driver's licence for a period of 12 months. The maximum penalty for the offence of illegal interference with a motor vehicle was, in this case, given that this was not a first offence, imprisonment for not less than three months and not more than four years. The offence also attracts a mandatory period of licence disqualification of 12 months. It is not apparent from the sentencing remarks of the sentencing magistrate what prompted the magistrate to go below the minimum sentence of three months. He did not refer to s17 of the Criminal Law (Sentencing) Act 1988 nor did he refer specifically to any of the factors mentioned in that section which might have justified the reduction.

5. I turn now to the offences which occurred on 1 and 2 February 1998.  During all these offences, the appellant was on bail in respect of the previous charges.  I deal first with the offence of building breaking and larceny.  The offences occurred in circumstances where the appellant had embarked upon a four to five day drug and alcohol binge which began at the beginning of the month.  In relation to the breaking and entering, the victim in that case was an inner-city hotel known as the Old London Tavern.  At about 11.30pm  on 1 February 1998, police went to the hotel following information that the appellant had been seen leaving the premises at a time when the hotel was closed for business.   The hotel had been broken into and approximately $2,000 had been taken from the TAB drawer in the main bar.  In addition, four bottles of assorted liquor valued at $120 were found to have been removed from their shelf.  The front door was also damaged.  Police subsequently arrested the appellant in Hindley Street at about 4.00am on 2 February.  Upon searching him, the police located a large sum of money - approximately $1,885 - in his right shoe.   Other items, including a bloodstained cigarette lighter bearing the insignia of the London Tavern, were located in a green bag which the appellant was carrying.  The appellant initially denied any involvement in the offence.   The maximum penalty for that offence is eight years' imprisonment.  The charge for property damage related to damage that had been done to the front door of the London Tavern in the course of the breaking and entering.  The maximum penalty for that offence, given the amount of damage involved, was two years' imprisonment. 

6. When the appellant was questioned in relation to the breaking and entering, the appellant supplied the police with a false name and address.  He also gave the same false information on his bail application.  It was those events which were the subject of one of the offences of providing a false name and address and for the providing of false information on the bail application.  The maximum penalty for providing a false name is three months' imprisonment or a $1,000 fine, and the maximum penalty for giving false information on a bail application is $1,000.  For all the four offences which I have just mentioned which occurred on 1 and 2 February, the magistrate imposed a single penalty of 22 months' imprisonment, cumulative upon the previous two sentences. 

7. I turn then to the offences which occurred on 4 February 1998.  The appellant at that time was on bail for a number of charges.  The offence of assault occasioning actual bodily harm and building breaking and larceny occurred when the appellant went to the victim's house at Salisbury North.  The victim was a 56-year-old man.  At about 7am on 4 February, the victim heard a loud banging noise coming from the rear of his yard which he decided to investigate.  He went to his garage and noticed the appellant, who was brandishing a Coke bottle.  The appellant threw the contents of the bottle, which was filled with petrol, in the face of the victim.  He then proceeded to hit the victim over the head with an iron crowbar, putting him in fear of his life.  The appellant attempted to administer two further blows to the head of the victim, but the victim managed to fend these off with his forearm.  The victim collapsed and was later taken to the Lyell McEwin Hospital, where he received four stitches to his head and treatment to his eyes as a result of the petrol that had been thrown in his face.  The appellant then entered the rear door of the victim's house and stole a gold watch, a wedding ring, two sets of keys, two gold clips and money to the value of $19.15.  The total value of the property stolen was estimated to be about $500.  The offence of assault occasioning actual bodily harm carries a maximum penalty of five years.  Building breaking and larceny carries, as I said before, a maximum penalty of eight years. 

8. Upon being arrested for these two offences, the appellant again gave police a false name and address as well as supplying them with several dates of birth.  A fingerprint check revealed that the offender was in fact the appellant, and he was then charged with giving a false name and address to a police officer, for which, as I said before, the maximum penalty is three months' imprisonment or a $1,000 fine.  In relation to those three offences, the magistrate imposed a single penalty of 34 months' imprisonment, cumulative upon the previous sentences.  The overall total, therefore, for the period of imprisonment was 61 months or five years and one month.  The sentencing magistrate then set a non-parole period of 50 months, or four years and two months, commencing on 4 February 1998, being the date upon which the appellant was taken into custody. 

9. I have already mentioned that the appellant was on bail when he committed the serious offences of building breaking and larceny, of which there were two, and the assault occasioning actual bodily harm. However, at the time he committed all of the offences, he was also on parole in respect of an earlier sentence. The unexpired period of parole at the time when he committed the first offence for which imprisonment was ordered, namely, 29 November 1997, was eight months and 20 days. By virtue of s75 of the Correctional Services Act 1982, that sentence of imprisonment had the effect of requiring that the appellant serve the balance of his previous sentence. It also meant that the sentence imposed by the magistrate could not be backdated to 4 February, as the magistrate had done, and that the unexpired period of the parole had to be served from the day of sentencing. That is by virtue of s75 of the Correctional Services Act 1982 as applied in R v Bartels (1986) 44 SASR 260. It also meant that the sentencing magistrate was required to take into account the period between the appellant's arrest and being taken into custody (4 February 1998), and the date of his sentence (3 June 1998). That period had to be taken into account in fixing the head sentences and the non-parole period. The magistrate was also required to take into account the balance of the earlier sentence in fixing the non-parole period.

10. The fact that the appellant was on parole at the time of committing these offences was not brought to the attention of the magistrate, and, of course, he then proceeded with the sentence in ignorance of that fact.  The result is that the special factors to which I have just referred were not taken into account, and therefore, quite apart from whether the sentences actually imposed were manifestly excessive, the sentencing process plainly miscarried and the appellant must be sentenced afresh.  The sentencing magistrate cannot be blamed for that.   Surprisingly, he was not provided with the full antecedent report or with any report from the Parole Board as to the status of the appellant's parole; nor was the fact that he was on parole referred to in submissions.  The appeal must therefore inevitably be allowed. 

11. The question then arose as to whether I should remit the matter to the Magistrates Court for reconsideration of the penalty or whether I should impose a sentence myself.   In the interests of certainty and in order to prevent further delay and the saving of costs, I decided to proceed myself.  The factors which the sentencing magistrate took into account and which I must also take into account included that the appellant was a person with a poor record who had committed a series of very serious offences.  He had been what the magistrate described as a 'persistent offender' for some six years.  The record as it was before the magistrate showed convictions and custodial sentences for assault, including assaulting police, some quite serious property offences and various offences of dishonesty and illegal use.  As the sentencing magistrate pointed out, the disorderly behaviour offence, which was the first one, was committed a mere two months after his release from prison, and all of the other offences were committed while the appellant was on bail.  As the magistrate acknowledged, the appellant committed the offences while he was under the influence of alcohol or drugs, but added that the appellant had long since known that he was more likely to offend when intoxicated, yet had chosen to do little or nothing to alter his lifestyle accordingly.  These factors will, of course, be material to any reassessment of the appropriate penalty. 

12. I must also take into account, which the magistrate did not, that the appellant was not only on bail but was also on parole when the offences were committed and that any custodial sentence can only be served after the expiry of the balance of the previous sentence, in accordance with the requirements of s75 of the Correctional Services Act.   I must also bear in mind that he had been in custody from 4 February until 3 June 1998, being the day on which he was sentenced by the magistrate, and that as I am now imposing a fresh sentence, that he has had a further period in custody since then.  The sentencing magistrate gave the appellant credit for his early pleas of guilty, reducing the sentence he would otherwise have imposed by one third.  I can only observe that that was a generous allowance in all the circumstances, but it does indicate that the sentencing magistrate was looking at a total head sentence of the order of seven years and seven and a half months. 

13. The personal circumstances of the appellant as placed before the sentencing magistrate are also relevant, of course, on reassessment of the appropriate penalty.  The appellant is 23 years of age.  He has an unimpressive antecedent record as it was before the magistrate which commences with convictions in the Children's Court in 1992-93.  I have already referred to the general nature of those offences. 

14. The appellant had a rather disrupted education leaving school at year 10 at the age of 15.  He has little employment history to speak of but had worked as a butcher's assistant.  It seems that a major turning point occurred in the appellant's life when his father was imprisoned.  The appellant was profoundly disturbed by this occurrence which effectively heralded the commencement of his own history of criminal offending. 

15. A psychologist who examined the appellant, Mr Fugler, stated in the report which he subsequently prepared, that the appellant “would more than likely be diagnosed as an alcoholic”.  And that “he drinks alcohol on a daily basis in order to become intoxicated, using alcohol to self-medicate his unresolved distress”.  He also drew attention to the fact that the appellant is a heavy user of cannabis and a regular user of amphetamines.  He knows that the appellant had abused other drugs as well, namely, LSD and Benzodiazepines.  It was Mr Fugler's opinion that a considerable amount of the appellant's aggressive and anti-social behaviour is likely to have been representative of an unresolved anger related to his father.  Mr Fugler concluded his report by saying “If Mr Deas is not to spend the greater part of his early adult years incarcerated he needs to begin to accept responsibility for his actions and to seek appropriate counselling in an attempt to reduce his level of tension and aggression”. 

16. I turn then to the offences.  The offence of disorderly behaviour committed on 29 November 1997 is the first one.   Leaving aside the possible effect of a fine, the sentencing magistrate imposed the maximum penalty.  I have some difficulty in accepting that the offence, as described, justifies that penalty.  Given the appellant's record, as it was before the magistrate, and the aggravated circumstances of the offence being committed whilst the appellant was on parole, I think it justifies a sentence of imprisonment.  Given the appellant's antecedents and allowing for his plea, I would be inclined to impose a sentence for that offence of one month. 

17. In relation to the illegal interference with the motorcycle on 3 December 1997, as I have said, the magistrate imposed a sentence of two months, and I have already noted that there was no apparent justification for the reduction of the sentence below the statutory minimum of three months. It was not at the serious end of the scale of offences, but I cannot accept that there were any circumstances touching the offence which brought it within one of the criteria referred to in s17 of the Criminal Law (Sentencing) Act 1988. I would be minded to impose the minimum sentence required of three months imprisonment.

18. For the offences which occurred on 1 and 2 February 1998, namely, the hotel breaking and larceny, the property damage to the hotel, giving of a false name and address and the providing of false information on a bail application, I think it is appropriate that they be the subject of the one penalty under s18A of the Criminal Law (Sentencing) Act as being part of the single course of conduct. 

19. Nevertheless, it is a course of conduct which did the appellant no credit.  It was aggravated by the fact that he was on bail and on parole.  I also have regard to the appellant's past record and the fact that the hotel was, apparently, unoccupied when broken into, but that a significant amount of cash and liquor was stolen.  I have in mind what the Full Court said was an appropriate tariff for the offence of breaking and entering and stealing, standing alone, and committed by a previously imprisoned offender and allowing for a plea of guilty and with a relatively small value of property involved.  In R v Halse (1985) 38 SASR 594 it was held that a penalty for that type of offence would appropriately be in the region of 12 to 18 months imprisonment. This I think was worse. I must take some account of the other three offences for which the sentence is also to be imposed. In the circumstances, I give some weight to what the sentencing magistrate fixed. That was a head penalty of 22 months. I do not consider that to be excessive and I would be inclined to do the same myself. However, I would reduce that to 20 months to take account of the period he has been in custody pending the determination of this appeal.

20. It is also appropriate to consider one penalty for the offences on 4 February 1998, that is, the assault occasioning actual bodily harm, the housebreaking and the giving of a false name and address.  The primary offence was an unwelcome invasion of the victim's property and a vicious attack on him.  It was compounded by the appellant entering the house and stealing property of some value from the victim, together with the initial attempt to avoid detection.  For all three offences and after allowing for the plea of guilty, taking into account the factors common to the other offences, I would be inclined to impose a head sentence of 30 months.  Against that I would give credit for the four months that he spent in custody pending the date of sentence before the magistrate, making that a net head sentence of 26 months.

1. Normally, all sentences for a series of disparate offences or groups of offences like this should be served cumulatively.  I see no reason to depart from that in this case.  That would make a total head sentence of 50 months.  I must ask myself then whether the total period, so fixed, including the period already served, is so crushing as to require some reduction of the total effect. 

2. I disagree with Mr Barnett that I should do that in respect of the total sentence after adding back any allowance I may have made for contrition or pleas of guilty.   What must be considered is the total head sentence proposed to be imposed.  The factors which are pertinent in this case are the need for personal deterrence.  That must play an important part in this sentence.  The appellant seems not to have been deterred by past sentences and has abused conditions of both bail and parole. 

3. In considering the question of totality, I have already made some allowance for that in fixing composite sentences for the four offences which occurred on 1 and 2 February and the three offences which occurred on 4 February.  The sentence for these offences are probably less than the total that might have been imposed had they been treated as offences standing alone. 

4. Taking all the factors I mentioned into account, I cannot say that, viewed as a whole, the total sentence would, in the circumstances, be so great as to require some adjustment.  I should add, in considering that question of totality, I do not, nor should I, bring into account the unexpired period of the previous sentence: Chandler v R (1994) 62 SASR 558 and the cases referred to in that case at p560.

5. I would, therefore, propose that each of the sentences which I have indicated should be cumulative upon the other. The first one should take effect at the end of the sentence to be served pursuant to s75 of the Correctional Services Act.  That would make a total period of imprisonment of 58 months or 4 years, 10 months and 20 days.  For that, it would be necessary to fix a non-parole period. 

6. I raised with counsel the possibility of not fixing a non-parole period, at this stage, because of uncertainties surrounding the prospects of rehabilitation of the appellant.  I did so in the light of the advice of Mr Fugler that the appellant ought to seek appropriate counselling in an attempt to reduce his level of tension and aggression.  I had in mind that whether the appellant undertook such treatment and what the effect might be could be relevant in fixing, later, an appropriate non-parole period.   However, both counsel discouraged me from doing that and I refrain from following that course.  However, I am left in a position where I cannot be satisfied that early release on parole will assist in the appellant's rehabilitation.   On the contrary, the appellant's past record suggests that early release on parole is only likely to be abused.   However, he must be given a chance. 

7. In fixing a non-parole period, I also take into account that he has been in custody in respect of these sentences for four months prior to sentence being imposed being dealt with in the Magistrates Court and for a little over 2 months since then.  I am inclined to fix a non-parole period of three years and four months. 

8. I have indicated what I have proposed to do.  In one case I propose increasing the sentence but, overall, there is a reduction in what the magistrate imposed, both in the head sentence and in the non-parole period. 

9. Mr Barnett, is there any action you wish to take or instructions you wish to obtain before I make any formal orders?

MR BARNETT:                   No. 

HIS HONOUR:  I make the following orders. 

1...... I extend the time in which this appeal may be instituted to 24 June 1998. 

2......... The appeal is to be allowed. 

3...... I set aside the sentences imposed in the Magistrate's Court on 3 June 1998 and substitute the following sentences. 

(1)... For the offence of disorderly behaviour on 29 November 1979, the penalty will be one month imprisonment to take effect from the expiry of the balance of the sentence now to be served pursuant to s75 of the Correctional Services Act. 

(2)... In respect of the illegal interference with the motorcycle, which occurred on 3 December 1997, I impose a penalty of 3 months imprisonment cumulative upon the sentence I have just pronounced. 

(3)... In respect of the offence of hotel breaking and larceny, damage to property, giving a false name and address, and providing false information on the bail application, all of which occurred on 1st and 2nd February 1998, I fix a single penalty under s18A of the Criminal Law (Sentencing) Act 1988, of 20 months imprisonment cumulative upon the sentences I have just pronounced.

(4)... For the offence of assault occasioning actual bodily harm, house breaking and larceny, and providing false name and address on 4 February 1998, I fix a single penalty under s18A of the Criminal Law (Sentencing) Act 1988 of 26 months, cumulative upon the sentences which I have just pronounced.

(5)... The total head sentence is therefore 50 months imprisonment, to be added to the unexpired sentence to be served pursuant to s75 of the Correctional Services Act.   That makes a total period of 58 months and 20 days.  In respect of that total period I fix a non-parole period of 3 years and 4 months commencing from today.