DEWAR v Police - [2007] SASC 408

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
DEWAR v POLICE
[2007] SASC 408
Judgment of The Honourable Justice Sulan (ex tempore)
14 November 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appeal against sentence - appellant convicted of unlawful possession of jewellery - at the time of the offending appellant was on a suspended sentence bond for similar offending - Magistrate sentenced the appellant to 12 weeks' imprisonment in respect of the offence of unlawful possession - Magistrate revoked the suspension and ordered the suspended sentence of six weeks' imprisonment take effect for the breach of bond - sentences ordered to be served cumulatively, making the total sentence 18 weeks' imprisonment - Magistrate suspended ten weeks of the total sentence, pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 - whether sentence manifestly excessive - whether Magistrate erred in not suspending whole of the sentence - appellant had served five weeks and three days' imprisonment as at the date the appeal was heard - bail having been granted pending appeal - personal deterrence considered.
Held: Appeal allowed, appellant re-sentenced - appellant not required to serve any further immediate custodial sentence in respect of the breach of bond - in respect of the unlawful possession offence, sentence of 12 weeks' imprisonment affirmed and suspended upon the appellant entering into a bond to be of good behaviour and under supervision for a period of two years.
Criminal Law (Sentencing) Act 1988 s 38(2a), s 58(3), s 58(4)(a), s 58(4)(b); Summary Offences Act 1953 s 41(1), referred to.
House v The King (1936) 55 CLR 499; The Queen v Osenkowski (1982) 30 SASR 212, applied.

DEWAR v POLICE
[2007] SASC 408
Magistrates Appeal

SULAN J (ex tempore): On 28 June 2007 the appellant was convicted of a charge that on 29 September 2005 she had in her possession jewellery which was reasonably suspected of having been stolen or obtained by unlawful means, contrary to s 41(1) of the Summary Offences Act1953.
The appellant was charged with the offence after the police, who were acting on information, followed her to a jeweller’s shop where she was in the process of attempting to sell the items to a jeweller. The appellant had previously been convicted on 24 February 2005 of unlawful possession, that offence had been committed on 23 March 2004. She was sentenced to imprisonment for six weeks, suspended upon her entering into a bond to be of good behaviour for two years.
On 3 July 2007 a Magistrate heard submissions in respect of the offence committed on 29 September 2005. Other than the unlawful possession charge, for which she had received a suspended sentence, the appellant did not have other relevant previous convictions. All her previous convictions related to driving offences.
The Magistrate took into account that the appellant was a sole parent looking after a child who is now five years old. The appellant’s partner was seriously injured in a car accident and is a patient at the Julia Farr Centre. The Magistrate was informed that there was no appropriate person who could look after her five-year-old daughter. At the time the appellant was living at 14 Barnes Avenue, Highbury, in rental accommodation which was close to her daughter’s school.
The Magistrate concluded that the appellant’s failure to comply with the bond was not trivial. He considered his powers under s 58(3) of the Criminal Law (Sentencing) Act 1988 (‘the Sentencing Act’) and determined that no proper grounds existed to excuse the failure to comply with the bond and he, therefore, revoked the suspended sentence and ordered that the sentence of six weeks take effect.
As to the offence committed on 29 September 2005, the Magistrate imprisoned the appellant for 12 weeks to be served cumulatively upon the sentence of six weeks. This made a total sentence of imprisonment of 18 weeks.
The Magistrate considered whether to suspend the sentence. He determined to suspend part of the sentence. Pursuant to s 38(2a) of the Sentencing Act, he suspended ten weeks of the sentence upon the appellant entering into a bond to be of good behaviour for ten weeks. In considering whether to suspend the sentence, the Magistrate observed that there are competing interests. He said:
I must now consider whether or not the whole or indeed part of that sentence should be suspended. I have paused in these reasons because it is a difficult balancing process in sentencing you in relation to your offending. There are competing interests. Firstly, in relation to your personal circumstances, and on the other side of the ledger, the interests of the community. Issues of personal and general deterrence but in your case particularly personal deterrence come [sic] to mind.
The appellant was therefore required to serve eight weeks of the sentence with the balance to be suspended. It seems that the Magistrate considered that if the appellant were to serve a relatively short period of imprisonment, that would act as a personal deterrent to her in the future.
The appellant was taken into custody on 3 July 2007. On 8 August 2007 an amended notice of appeal was filed. On 9 August 2007 the appellant was granted bail pending appeal. The appellant has therefore served five weeks and three days’ imprisonment of the total period of the eight weeks’ imprisonment she was required to serve.
Counsel for the appellant contends firstly that the sentence was manifestly excessive and secondly that the learned Magistrate erred in not finding good reason to suspend the whole of the sentence.
Mr Vadasz, who appeared for the appellant, informed the Court that, since the appellant’s release from custody, her five-year-old daughter has resumed residing with the appellant at the Highbury address. The child had been looked after by a friend whilst the appellant was in custody. That arrangement is no longer available.
During argument it became evident that if the appeal were dismissed, the appellant would be required to return to gaol for two weeks and four days. Mr Katsaras for the respondent agreed that to force the appellant to return to custody for a relatively short period, after she had already spent time in custody, would create undue hardship for the appellant, given her family situation. Furthermore, the primary reason for the Magistrate’s decision not to suspend the whole of the sentence seems to have been satisfied to a large extent in that the appellant has now served some weeks in custody, which would have brought home to the appellant what may occur to her in the future if she were to continue to offend.
In the circumstances, the aim of personal deterrence would appear to me, to a great extent, to have been satisfied.
The respondent has consented to this Court re-sentencing the appellant, given the intervening events and the unusual circumstances of this case. In my opinion there are good reasons in this case for the Court to take a merciful approach. I repeat what was said by King CJ in The Queen v Osenkowski,[1] when His Honour observed:
There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.[2]
[1] (1982) 30 SASR 212.
[2] Ibid, 212-3.
This is such a case. I have formed the view that by exercising leniency there are good prospects that the appellant will not re-offend, she having experienced a period in custody.
I am cognisant of the fact that an appellate court should be reluctant to interfere with the exercise of a Magistrate’s discretion. However, as was observed in House v The King,[3] there may be occasions where it appears to the appellate court that to abstain from interfering with the exercise of the discretion would plainly lead to injustice. In those cases, the appellate court may infer that there has been a failure to properly exercise a discretion which is reposed in the court of first instance.
[3] (1936) 55 CLR 499.
The circumstances of this case are exceptional. In my view, the Magistrate was correct in concluding that there were good reasons to suspend part of the sentence. Having regard to what has transpired, the appellant has now served more than half the period she is required to serve in custody. It seems to me that there would be undue hardship created if the appellant were required to return to custody for a short period of just over two weeks.
Pursuant to s 58(4)(a) of the Sentencing Act, I consider that there are special circumstances to reduce the period of the original sentence, which had been suspended, from six weeks to five weeks and three days. The appellant has served that sentence, taking into account the fact that she has spent that period in custody. I have regard to s 58(4)(b) of the Sentencing Act, and I direct that the time spent by the appellant in custody, pending determination of these proceedings for breach of a condition of her suspended sentence bond, be counted as part of the term of the suspended sentence. I direct that five weeks, three days which the appellant has spent in custody be counted as part of the term of the suspended sentence.
As to the offence committed on 29 September 2005, I affirm the order of the Magistrate that the appellant be imprisoned for 12 weeks. Given all the circumstances to which I have referred, I consider good reason exists to suspend the sentence upon the appellant entering into a bond to be of good behaviour for two years and during that time to be under the supervision of a community corrections officer. In that regard I vary the order of the Magistrate and direct that the period of twelve weeks’ imprisonment be suspended.
In my view, the appellant’s personal situation is such that a lengthy period of supervision is required in order that she may seek assistance and ensure that she does not re-offend.
The formal order of the Court is that the sentence of imprisonment imposed on 3 July 2007 be set aside. In lieu thereof in respect of the period of the suspended sentence I revoke the suspension. I direct that the sentence take effect. I reduce the six weeks’ period of that sentence to five weeks and three days. I direct the period of five weeks and three days that the appellant has spent in custody be counted as part of the term of the suspended sentence. Therefore, the appellant is not required to serve any further period of time in custody.
As to the offence committed on 29 September 2005, I impose a sentence of twelve weeks’ imprisonment. I suspend that sentence of imprisonment upon the appellant entering into a bond to be of good behaviour for two years and on condition that during that time she be under the supervision of a Community Corrections Officer.