Dreckow and Kalling v Police No. Scgrg-98-1690 Judgment No. S60

[1999] SASC 60

[1999] SASC 60

DRECKOW AND KALLING V POLICE

Magistrates Appeal: Criminal

1. LANDER J.       The appellants were charged that on 9 September 1998 at Port Lincoln they stole a quantity of copper wire of the value $210, being the property of BHP Limited trading as BHP Port Lincoln.  The matter came on for hearing in the Port Lincoln Magistrates Court on 13 December 1998 when both appellants pleaded guilty.  Both appellants were represented by the same counsel, as they were on this appeal.  They were both convicted and each sentenced to four months imprisonment.  The appellant, Mr Dreckow, also pleaded guilty to a charge of unlawful possession for which he was convicted without further penalty.  The unlawful possession was of the plastic coating which surrounded the wire which was the subject of the offence of larceny.  It does not seem to me that the unlawful possession of that plastic wire added in any way to Mr Dreckow’s criminality in respect of these matters.  That must also have been the view of the learned Magistrate because, in respect of the unlawful possession charge, Mr Dreckow was convicted without further penalty.  The appellants were fishing at Billy Light’s Point within the BHP compound.  Apparently BHP allows people to fish in that area.  The appellants saw the copper wire.  They took the wire with the intention of taking it to Adelaide and selling it to a scrap metal yard.  They spent some time cutting the plastic coating off the wire, and, as I have said, the plastic coating forms the basis of the charge which is in relation to the unlawful possession.  It was put to the learned Magistrate that the appellants expected to receive in the vicinity of $500 for the stolen wire.  There is no reason to distinguish between the two appellants in respect of their criminality.  They were together.  They jointly agreed to take the copper wire and they both knew that they were not entitled to do so.  They both intended, at the time they took it, to sell the copper wire for as much as they could, expecting to get $500.

2. The appellant, Mr Dreckow, is aged 28.  He has lived in a stable de facto relationship for several years, and there are two children aged two and three of that relationship.  He was educated at Port Lincoln High School until Year 11.  He left school during that year and thereafter worked on a cattle station at Maree, and after that on a leather jacket boat.  He had also worked from time to time at Lukin’s and Blue Fin Enterprises doing processing work and unloading boats.  He has undertaken a number of courses at TAFE including welding, panel beating, and a literacy course, all of which he has passed.  Notwithstanding the qualifications he has obtained he has been mainly unemployed.

3. Mr Dreckow and his de facto wife and two children live on a pension, receiving about $209 per fortnight.

4. The appellant apparently uses cannabis, although it is not clear how he can afford to do so on his income.  Apparently, he has been to see a drug and alcohol counsellor in an effort to cease any dependency on that drug.

5. Mr Dreckow has previous offences for criminal conduct.  He has an offence for dishonesty involving a break and enter about six years ago, for which he received 240 hours community service.  I am told by Mr Hopkins, who appeared on behalf of the appellants, that Mr Dreckow’s criminality in respect to that offence was minimal.  He was the person who drove other offenders to the place where the break occurred.

6. He was convicted in 1995 for causing bodily harm by dangerous driving and he was sentenced to twelve months imprisonment with six months non-parole.

7. The appellant Mr Kalling was born in Adelaide but moved to Port Lincoln when he was about five years of age.  When he was seven his father and uncle were lost at sea when their fishing boat sank near a dangerous reef in Port Lincoln.  His father’s death, of course, affected the family and in particular the appellant and his siblings.

8. After his father’s death he was raised by his mother.  Because of financial circumstances the family was obliged to move houses on a number of occasions, as a result of which his schooling was disrupted to a significant extent.

9. The appellant obtained work after leaving school with a wool carting firm and then worked with Lincoln Bacon Specialists, but after two and a half years of work he was laid off.  From time to time he has worked casually with Lukin & Sons and has also done some leather jacket fishing.  He also has been mainly unemployed, but at the time he came before the Magistrate he had obtained casual work with a builder and there was some prospect of full-time work.

10. Mr Kalling also has a previous criminal history but it is significantly more unimpressive than his co-appellant.  He has had previous convictions for dishonesty.  In October 1990 he received a six month suspended gaol term on each of two convictions for break and enter and larceny.  In November 1994 he was convicted of social security offences for which he received a two month suspended term of imprisonment.  In August 1995 he was also convicted of the social security offences and he was sentenced to be imprisoned for six months, which again was suspended upon his entering into a good behaviour bond.

11. Both appellants complain that the sentence imposed upon them was manifestly excessive and in the alternative both complain that the learned Magistrate wrongly failed to exercise his discretion to suspend the term of imprisonment.

12. As I have already remarked there is no distinction between the two in relation to their criminality for this offence.  There is, in fact, little point of distinction between the two of them in relation to their antecedents.  There is a distinction however, between the two of them in relation to their previous criminal history.

13. The first question is whether or not the sentence of imprisonment for larceny of this kind was manifestly excessive.  Having regard to the premeditation and the appellants’ previous history, this offence of larceny, in my opinion, warranted a term of imprisonment, and a term of four months was not, in the circumstances, even given the pleas of guilty, manifestly excessive.

14. The second question to be determined is if the term of imprisonment was appropriate, whether the term should have been suspended.  The question of suspension involves the exercise of a discretion on the part of the sentencing Magistrate which may be exercised in favour of the person upon whom the sentence of imprisonment has been imposed, if the learned Magistrate is satisfied good reason exists for suspending it.

15. Whether good reason exists must depend upon the particular circumstances of the case, including the criminality of the offenders, the offenders’ antecedents, their personal circumstances, the prospect of the offenders’ rehabilitation, and generally whether the suspension of the sentence of imprisonment is likely to be of benefit to either or both the community and to the offender.  Of course, the circumstances of each case will give rise to other factors.

16. In my opinion it cannot be said in this case that the failure to suspend the sentence of imprisonment imposed upon the appellant, Mr Kalling, was a wrongful exercise of the discretion of the learned Magistrate.  He has a significant criminal history.  He has previously been extended leniency and has not been required to serve immediate sentences of imprisonment on three occasions.

17. There is a time when it could be said that it is neither in the community’s interest, or indeed the offender’s, that the sentence of imprisonment be suspended.  In other words, a time is reached where it can no longer be said that there is good reason for suspending the term of imprisonment.

18. In my opinion, the appeal by Mr Kalling against sentence must be dismissed.

19. The position of Mr Dreckow is somewhat different.  He has a less significant criminal history.  I think his conviction and imprisonment for causing bodily injury does not need to be given too much weight in the assessment of whether good reason exists for the suspension of the term of imprisonment imposed upon him.

20. What is significant from his point of view is that he only has one previous conviction for dishonesty, and that was six years ago, and that was in respect of an offence for which he played only a minimal part.

21. I am persuaded by counsel for the appellant that it would be appropriate to treat him differently from Mr Kalling.

22. Whilst I do not believe that the sentence of imprisonment was manifestly excessive, I do believe that in the case of Mr Dreckow there was good reason to suspend the sentence.  Those good reasons include his personal circumstances, his relationship with his partner, his obligations to his children, and his prospects of rehabilitation.  I would in his case be prepared to make an order suspending his sentence of imprisonment if he agrees to enter into a bond for two years in the sum of $500; the conditions of which would be first, that he be of good behaviour and under the supervision of a probation officer; secondly, that he do 200 hours of community service within twelve months.

23. Mr Hopkins, of course your clients are not present today.  What I intend to do, unless you want to address me otherwise, is to dismiss the appeal of Mr Kalling and to adjourn the appeal in relation to Mr Dreckow so that you can get instructions from him in relation to whether he is prepared to enter into a bond and to make arrangements for him to do so.  Do you wish to argue otherwise?

MR LESSES:              I don’t oppose that.

HIS HONOUR:          Then the orders for today are that:

1. The appeal of Mr Kalling is dismissed.

1. In relation to the appeal by Mr Dreckow I indicate that I will allow the appeal for the purpose of suspending his sentence, provided he enters into the bond which I indicated.  I will adjourn his appeal.