Duca v Police No. Scgrg-98-1738 Judgment No. S40

[1999] SASC 40

[1999] SASC 40

DUCA V POLICE

LANDER J:       The appellant appeals against a sentence imposed upon him in the Magistrates Court sitting at Christies Beach. 

The learned Magistrate had before her two informations and three complaints. 

The appellant pleaded guilty to a number of counts on the informations and on the complaints.  I will recite only those counts to which he pleaded guilty.  I will not refer to other charges which were contained on the informations and complaints.  These were withdrawn on his pleas of guilty in relation to the matters to which I will refer. 

There is no reason to discriminate between the matters which were on information and those which were on complaint. 

He pleaded guilty to the following offences:

(1)... Between 5 June 1998 and 14 June 1998 he received a computer and accessories and other items together of the value of $3,465, knowing them to have been obtained in circumstances amounting to an offence. 

(2)Between 9 June 1998 and 14 June 1998 he stole parts of a motor vehicle. 

(3)    On 25 June 1998 he stole a motor sedan of the value of $1,000. 

(4)    On 17 August 1998 he drove an unregistered motor vehicle. 

(5)    On 17 August 1998 he drove an uninsured motor vehicle. 

(6)... Between 29 September 1998 and 30 September 1998 he broke and entered the Yankalilla Area School canteen and committed the offence of larceny of assorted drinks, confectionary and other items to the value of $999.12. 

(7)    On 30 September 1998 he drove an unregistered motor vehicle. 

(8)    On 30 September 1998 he drove an uninsured motor vehicle. 

(9)... On 30 September 1998 he drove a motor vehicle which did not have the number allotted to the vehicle under the Motor Vehicles Act marked on the vehicle.

(10). On 30 September 1998 he drove a motor vehicle in contravention of an endorsement on his driver's licence. 

(11)Finally, on 30 September 1998 he drove a motor vehicle contrary to the terms of a defect notice. 

The learned Magistrate imposed the following penalties.  For the first offence a sentence of imprisonment for six months.  In relation to the larceny of the car parts being the second offence, a sentence of imprisonment for six months, cumulative on the period of imprisonment ordered to be served in relation to the first count. 

For the stealing of the motor vehicle, the subject of the third offence, a sentence of imprisonment for six months cumulative upon the two other periods of imprisonment was imposed. 

For the conviction for the break and enter of the Yankalilla Area School, the sixth offence, the appellant was sentenced to a further period of six months, also cumulative upon the other three periods of imprisonment. 

In total therefore he was ordered to be imprisoned for a period of two years. 

The learned magistrate set a non-parole period of 10 months from the date of the sentence. 

In relation to the motor vehicle offences he was convicted without penalty. 

The appellant raises two grounds of appeal.  He complains that the sentence imposed was manifestly excessive.  In the alternative or in addition to the first ground of appeal he argues that the sentence should have been suspended. 

The goods the subject of the first count were stolen from the Seaford Primary School.  The goods were found in the possession of the appellant during a police interview of the appellant in relation to other offences. 

The appellant claimed that he spoke to somebody at a bus stop and paid that person $200 for the equipment.  The appellant did not make full disclosure when interviewed by the police.  Indeed, the learned magistrate found that he was neither helpful nor responsive during police enquiries and attempted to mislead the police in relation to that matter. 

The second offence related to stealing car parts from a motor vehicle which was subsequently dumped and burnt.  The appellant was not charged with being involved in the dumping or burning of the vehicle.  The appellant stole a number of parts from the vehicle prior to its destruction, including a stereo, two front seats, an arm rest and bumper bars.  The learned magistrate rightly described the vehicle as having been stripped. 

The offence relating to the stealing of the motor vehicle occurred when the owner of the vehicle left the vehicle at a shopping centre for four days because it had broken down.  The appellant stole the vehicle from the shopping centre and took it to where he lived.  The vehicle was stripped.  The engine and the windscreens were removed.  The stereo system was taken.  The arrogance of the appellant can be shown in that he telephoned a tow truck operator and asked the operator to take away what was left of the car after he had stripped it.  Apparently the loss of the motor vehicle was more than an inconvenience to the owner.  Whilst the vehicle did not have a high market value, it was the owner's only source of transport, apart from public transport.  The loss of the vehicle has interfered with his ability to visit friends and play sport. 

The appellant broke and entered the Yankalilla Area School in the company of two juveniles.  Nearly $1,000 of goods, including drinks, chocolates, lollies, snack foods and the like were stolen.  In the process of stealing those items more than $600 worth of damage was caused to the school canteen.  The canteen needed to be cleaned which took some nine hours.  During the break and enter graffiti was scrawled on the walls.  One or more of the offenders wrote the words 'fuck' and 'fucker' on the canteen walls. 

In relation to the last offence the appellant was stopped for an unassociated vehicle offence.  The police noticed a jemmy bar which the appellant was carrying in the car.  When the boot of the car was opened the stolen goods were found. 

During the time of the interview in relation to the Yankalilla canteen matter, the appellant showed no remorse or contrition but treated the matter as a joke.  The gratuitous damage and the written obscenities indicate a complete lack of respect for the law.  More over the appellant was on bail at the time of the commission of that most serious offence. 

Most but not all of the goods have been recovered, although compensation of $1500 was sought but not paid in respect of the computer equipment.  I am not sure why the compensation was sought in respect of that equipment but I presume it was damaged during the time it was in the appellant's possession. 

There is a further claim for compensation of $1700 in respect of the Yankalilla canteen offence.  I believe that is in respect of the damage which was caused to the canteen.  No compensation has been recovered in respect of that. 

The motor vehicle offences were of course less serious and were dealt with by the learned magistrate accordingly.  By themselves, however, they are further evidence of a continuing disregard for the law. 

The appellant was born in Victoria on 6 April 1980, being the second eldest of three sons.  His parents separated when he was five and subsequently divorced.  He told the interviewer in a pre-sentence report that he has no recollection of family life whilst his parents were married to each other and does not recall any major hassles between his parents whilst they were negotiating their divorce. 

The appellant stated his relationship with his mother and brothers was good during his formative years and remains so.  The appellant had no contact with his father between the age of five and thirteen.  During that period the appellant lived with his mother and brother in South Australia and his father resided with another woman in Victoria.  When the appellant was about 13 he went to live with his father in Victoria, but after three years returned to live in South Australia again.  Contact with his father has again ceased.  The appellant attended primary school in South Australia and undertook three years of secondary education in Victoria whilst living with his father.  When he returned to South Australia he commenced Year 11 at Morphett Vale High School, but left after two weeks to commence work.  The appellant was employed whilst a student in Victoria as a labourer in a car wrecking firm.  After leaving school in South Australia he obtained a job as a trolley controller in a supermarket.  He left that job of his own accord about five months before coming before the court.  He had a job interview at about the time he was before the court. 

When he came before the learned magistrate his income consisted of $150 per fortnight from NewStart allowance, from which he paid $30 per week board and had a commitment in relation to some court fines.

Whilst he was a juvenile he committed the offence of illegal use and the court, without proceeding to a conviction, placed him on a bond for 12 months.  Again, whilst he was a juvenile he was also convicted of two counts of unlawful possession for which he was fined. 

Before his first appearance in court, the appellant does not appear to have exhibited any remorse or contrition in relation to these offences.  When he appeared before the court on the first occasion he was remanded in custody for a week.  He advised the court through his counsel that he did not wish to return to custody and that the experience in prison had made him remorseful and contrite.  Whilst the learned magistrate was prepared to accept that when he came before her he was contrite, she properly in my opinion remarked upon the absence of contrition before the remand in custody. 

After he was sentenced by the learned magistrate he spent a further week in custody at Yatala Labour Prison before he obtained bail, pending this appeal.  Again I am told by counsel that service of that period of imprisonment has had an effect upon the appellant and it is put to me that that has reinforced in his mind a wish to avoid further criminal activity so that he might not return to prison.

The learned Magistrate took a very serious view of these offences which, I think having regard to the period over which these offences were committed, and the seriousness of the offences themselves, and the attitude of the appellant in relation to the offences, she was entitled to take.  She said:

“I consider, given your history and given the fact that you are not a typical 18 year old, but somebody who has deliberately embarked upon a life of crime, that you are to be punished.  I am not convinced that because you are 18 or for any other reason that there are proper reasons existing to suspend any period of imprisonment.  You come before me having wreaked havoc on a number of people's lives, having shown a complete contempt for the ownership of other people's property and complete contempt for an educational facility which was to be used by students.  You have done much harm, your offences are deliberate, I see no proper reasons existing to suspend any period of imprisonment.  Not a cent of compensation has been offered by you and in those circumstances I consider you are liable to be imprisoned in relation to these offences.  The length of imprisonment will be lessened due to your age and the fact that it is the first time that you will find yourself in gaol.”

The learned sentencing magistrate gave very lengthy sentencing remarks.  It is clear from these remarks that she well understood the criminal conduct involved.  Moreover she took into account it would appear, everything that was put on behalf of the appellant in mitigation. 

Mr Rice, who has appeared for the appellant has argued that there is a disparity in the sentences of imprisonment imposed in relation to the four offences.  He argued that if the sentence of imprisonment in relation to the Yankalilla canteen offence, of six months imprisonment was appropriate, then it would follow that those offences which exhibited lesser criminality ought to have given rise to a lesser period of imprisonment.  He was prepared to accept that a six month term of imprisonment might have been appropriate in relation to the Yankalilla canteen offence and the receiving of the computer equipment, but he argued that the criminality involved in relation to the larceny of the motor vehicle and the parts of a motor vehicle, ought to have given rise to a lesser sentence.  Ms Ryan, who appeared on behalf of the respondent argued that the criminality of the second and third offences, was in fact no less than that involved in the first and the fourth offences.  She argued that those two offences again showed a disregard on the part of the appellant for the law, but more particularly a disregard by the appellant for any other person's property.  She pointed out that in relation to both of the vehicles which were involved in the larceny, one in whole and one in part, that the appellant had stripped the motor vehicle. 

In relation to one, the motor vehicle was later dumped, burnt; and in relation to the other, the appellant had the arrogance to have it towed away.  In the end, I am persuaded by Ms Ryan's argument that it was not an error on the part of the learned magistrate to impose a sentence of six months imprisonment in relation to each of the second and the third counts.  Whilst it may be the case that I would not have imposed such a lengthy period of imprisonment myself in relation to those two counts, I am persuaded by Ms Ryan's argument that a sentence of imprisonment in relation to each of those counts is not indicative of error. 

It was also argued by Mr Rice that it was inappropriate to make each of the sentences cumulative upon each other and that some of the sentences ought to have been concurrent, so as to give rise to a lesser head sentence.  I am not sure that I would have made each of the periods of imprisonment cumulative upon each other, but I am sure that I cannot say to do so indicates that the sentence was manifestly excessive.  It is not for me to substitute the exercise of my sentencing discretion for that of the learned magistrate and in the circumstances of this case, I am not prepared to say that a head sentence of two years in relation to criminal conduct of this kind is of itself manifestly excessive. 

I have no doubt that if the head sentence was appropriate, and I believe it was not inappropriate, that a non-parole period of 10 months cannot be said to be manifestly excessive.  I think that the non-parole period was in the circumstances, notwithstanding the age of the appellant, relatively merciful, having regard to the head sentence imposed.  For all of those reasons, I cannot say that either the head sentence or the non-parole period was manifestly excessive. 

The learned Magistrate gave earnest consideration to the question of a suspension of the sentence of imprisonment.  As I have indicated, she concluded that she should not suspend the sentence of imprisonment because she believed that the appellant had embarked on a criminal course of conduct.  I must say it is in respect of the suspension of the period of imprisonment that I have been most troubled.  I think if I had been in the place of the learned magistrate, I would have suspended the sentence of imprisonment, because I think I would have given this appellant one chance as an adult to rehabilitate himself.  I think I would have suspended the sentence because the appellant had indicated that the week he had spent in gaol on remand had brought to his attention the seriousness of his offending. 

The question remains however, whether on appeal I can say that the learned magistrate must have erred in failing to suspend the sentence of imprisonment.  In R v Weaver, (1973), 6 SASR 265, the Full Court said that whenever a young person is before the court, rehabilitation should be a prominent consideration in the imposition of any sentence imposed. That case was brought to the attention of the learned magistrate, but she believed that the appellant's previous convictions as a juvenile meant that he could not be treated as a first offender. Of course, his previous convictions as a juvenile are important and of course they must be taken into account in determining whether or not it would be appropriate to suspend the period of imprisonment.

However, I think because the appellant has been previously convicted as a juvenile he is not necessarily disqualified from the considerations expressed in R v Weaver. Indeed, the Full Court said in that matter at 267:

“Whenever a young person is before the court, particularly upon his first appearance as an adult, it seems to us that his rehabilitation should be a prominent consideration in fixing the sentence.”

There is a significant difference between offences committed as a juvenile and those committed as an adult.  Simply because the appellant had committed offences as a juvenile in my opinion does not necessarily mean he is beyond rehabilitation.  I think therefore it can be said, as Mr Rice has argued, that the learned magistrate failed to have sufficient regard to the question of rehabilitation and indeed failed to have sufficient regard to the prospects of the rehabilitation of this particular offender.  I must say I am very reluctant to disagree with the magistrate, who has spent the time and care that this magistrate has done in her consideration and sentencing this appellant. 

In my opinion, Mr Rice has succeeded in establishing that she fell into error in the exercise of the sentencing discretion in relation to the suspension of the period of imprisonment which she imposed.  I would therefore confirm the sentence in respect of the head sentence, and confirm that the appellant should be imprisoned for two years.  I also confirm the non-parole period set by the magistrate at 10 months.  However, I would suspend the sentence of imprisonment upon the appellant entering into a bond to be of good behaviour for a period of three years in the sum of $500.  I would impose the following conditions:

1. The appellant to be under the supervision of a probation officer and to obey the lawful directions of that probation officer. 

1. The appellant to perform 200 hours of community service within 12 months.