Drenkovski v Police No. Scgrg-98-791 Judgment No. S6773

[1998] SASC 6773

DRENKOVSKI v POLICE

Magistrates Appeal
Debelle J

Appeal against sentence 

The appellant's complaint is only against the length of the non-parole period fixed by the magistrate who sentenced her.  The appellant also applies for an extension of time within which to appeal.  The appeal is some three and one half months out of time.  The appellant had, however, given notice of her intention to appeal when the appeal was only 28 days out of time.  The respondent does not object to an extension of time.  In all the circumstances I think it is appropriate to extend the time within which to appeal. 

On 20 January 1998, the appellant pleaded guilty in the Magistrates Court at Christies Beach to several offences.   The first was that, on 28 September 1997 at Port Noarlunga, she broke and entered a house and stole goods to the value of about $115.  The other six offences were all committed at the one place, namely a home for elderly people.  These offences occurred on 27 December 1997 at Christies Downs.  They were offences of breaking and entering into the rooms occupied by elderly men and in two cases stealing money from those rooms. 

She pleaded guilty to six offences in all. Four were offences of breaking and entering, one an offence of being unlawfully on premises, and the sixth the offence of giving a false name and address. 

For these offences the appellant was sentenced to a period of imprisonment for a period of two and one half years.   The magistrate fixed a non-parole period of two years.  The appellant appeals only against the term of the non-parole period, which she contends is manifestly excessive. 

The offences were relatively serious.  The first involved breaking and entering into a house and stealing.   The victim returned home and apprehended the appellant.   The goods which were stolen were recovered. 

The remaining six offences arose out of the appellant attempting to steal from very elderly men residing in a home for the aged.  The appellant entered a number of rooms looking for articles to steal.  She entered four rooms in all.  She stole $120 from one room and $159.20 from another.  She was apprehended in the premises.  The four victims or potential victims were aged respectively 81 years, 83 years, 88 years and 91 years.  When arrested at the scene, the appellant gave a false name and address.  She later admitted her correct name. 

The seriousness of the offences in December 1997 was aggravated by the fact that the victims were frail and defenceless old men, some of whom were asleep at the time.  One of the victims was blind.  A further aggravating feature is the fact that the offences on 27 December were committed whilst the appellant was on bail for the offence on 28 September.  She had been released from custody not long before. 

The appellant has a long history of offending both in this State and in other States for a variety of offences, including breaking and entering premises, larceny, malicious damage, and assault.  As a juvenile in New South Wales she was committed to an institution on more than one occasion.  On other occasions she was ordered to perform community service.   She was placed on probation in Queensland in 1994. 

In 1995 the appellant came to South Australia with her de facto husband and two children.  Since her arrival in this State she has been convicted for a number of offences including larceny and other offences of dishonesty.  On 6 February 1997, she was imprisoned by an order of a magistrate for a period of one month for offence of larceny and providing a false name and address.  That sentence of imprisonment was suspended upon her entering into a bond to be of good behaviour for a period of two years. 

Subsequently on 20 June 1997 she appeared in the Holden Hill Magistrates Court on a number of offences of larceny. She was then imprisoned for a period of two months.  On 24 July she was released into home detention but, having breached the bond ordered on 6 February 1997, she had to serve one month’s imprisonment which had been suspended. 

It is apparent that the appellant has learned nothing from the leniency which has been extended to her in the past or from opportunities provided to her to reform her conduct.  This was plainly a matter which weighed heavily with the magistrate. 

At the time of the offending the appellant had living with her two children and her defacto husband.  The first child is aged 15 years.  She is a child of a former relationship.  She is getting into trouble with the police and the appellant says that she is concerned for her.  The second child is a son of the relationship between the appellant and her present de facto husband.  He is aged five years.   His father is unable to look after him and he has been placed in foster care.  The Department for Family & Community Services has become involved in the matter and is seeking orders to place the child in foster care on a more permanent basis. 

The non parole period is very substantial. It is not entirely clear why the magistrate has imposed such a substantial period.  It is apparent from the sentencing remarks of the learned magistrate, when deciding whether he should not accede to a submission to suspend the period of imprisonment, that he took a serious view of the offending and the failure of the appellant to reform her conduct. The learned magistrate referred to the fact that the appellant had failed to change her ways despite ample opportunities in the past to do so.  There is no reason why this court should depart from those views.  The facts and circumstances of the appellant's offending supported the conclusions reached by the learned magistrate. 

In the course of determining whether he should suspend the sentence, the learned magistrate also referred to the fact the appellant had two children and he said he would make some allowance for that. However, when fixing the non parole period it does not appear that the learned magistrate has made any allowance for the effect of the sentence upon the appellant's children. Section 10 of the Criminal Law Sentencing Act, 1988 explicitly provides that a sentencing court should take into account the effect of any sentence upon the dependants of an offender and that principle has been reiterated by the Court of Criminal Appeal in R v Blockie (1991) 56 SASR 250. The learned magistrate was faced with a difficult problem and one can sympathise with his dilemma. It was necessary for him to endeavour to balance the responsibility to the community to protect it from crime and in particular, to protect it from the offence of breaking and entering and larceny, which is an all too prevalent offence, on the one hand and on the other, to promote, so far as is possible, the rehabilitation of an offender who has a serious record but who might be capable of reform. Those difficulties were compounded in this case by the fact that the appellant has two dependant children, one of whom is still of very tender years.

The appellant has sworn an affidavit in which she expresses contrition and a desire to reform.  But the matters expressed in her affidavit must be weighed against her poor record and the other matters to which I have earlier referred. 

When his remarks are read as a whole, the learned magistrate does not appear to have given any or sufficient weight to the fact of the two dependant children.  At the end of the day it is the interests of those two children which is a factor to which the learned magistrate failed to have sufficient regard and one which I think justifies the reduction of the non parole period.  For these reasons I believe that the learned magistrate erred. 

In all the circumstances it is appropriate to reduce the non parole period. However, when determining what is the appropriate period, regard should also be had to the fact that this appellant has already had a great deal of leniency extended to her in the past and her offending is such that the non parole period must be reasonably lengthy. 

I am encouraged to reduce the non parole period because a longer parole period will enable the appellant to have a longer period of supervision by a probation officer. This will provide further opportunity, if the appellant is prepared to seize it, for assistance in reforming her conduct.  But it is only fair to add that, if the appellant commits further offences, once she has been released, she should not expect to be treated leniently again. 

For all of these reasons, I think it is appropriate to reduce the non parole period.  I will therefore make orders as follows:

1. Appeal allowed. 

2.  I set aside the non parole period fixed by the magistrate and substitute therefor a non parole period of 15 months.   

HIS HONOUR:  Ms Drenkovski, stand up please.  As you have heard me say, the factor which has most influenced me in deciding to reduce the non parole period is the interest of your children and in particular your son.  But for those children, I would not have been disposed to interfere with the order made by the magistrate, which, in all other respects I think was a very fair order. 

I should also say to you that you only just got there as it were by the skin of your teeth.  When I originally looked at the papers I was almost disposed not to interfere with the order at all.  That is because your conduct in the past has been quite reprehensible.  You seem to continue to offend, quite repeatedly.  An examination of your record shows that you offend almost on a monthly basis at times.   On this occasion, shortly after you were released on bail, you were offending again when you went into the elderly person's home.  It might be said that I have been lenient with you.  As I have said in my reasons, it is unlikely that you will be treated leniently again. 

When you are released on parole - you will be on parole for a period of 15 months - you will have the benefit of a supervision of a probation officer.  The probation officer is there to assist you.   She is there to provide you counsel.  When in difficulty you should consult her.  They are there to provide that kind of assistance.  They can provide assistance in all sorts of matters.  They are there to assist you, to keep you out of trouble.  It is because that assistance is available I was also minded to reduce the non parole period, so that you have a longer period on parole.  Do you understand that?

PRISONER:  Yes your Honour. 

HIS HONOUR:  You have the opportunity to reform your conduct.  The parole officer will provide you with that opportunity.  I hope you seize it.  But, as I said, if you offend again it's unlikely you will be treated leniently again, even though your children may have to be placed in foster care.  So it is not only in your own interests but in the interest of your children that you should seek to reform your conduct.  Do you understand?

PRISONER:......................... Yes sir.