Fabian David WILLIAMS v SA Police No. SCGRG 93/2361 Judgment No. 4374 Number of Pages 5 Criminal Law and Procedure Sentencing

[1994] SASC 4374

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Criminal law and procedure - sentencing - appeal against sentence - appellant convicted of three counts of larceny, two counts of being on premises without lawful excuse and one count of giving a false name and address - total sentence of 5 months' imprisonment - first appearance of appellant as adult - whether sentence manifestly excessive - need for rehabilitation to be weighed against community interests of deterrence and adequate punishment. Ienko v Kraft (1990) 53 SASR 40 and R v Morse (1979) 23 SASR 98, applied.

HRNG ADELAIDE, 11 January 1994 #DATE 11:1:1994
Counsel for appellant:     Mr P Trezise
Solicitors for appellant:    Aboriginal Legal Rights Movement
Counsel for respondent:     Mr S Gupta
Solicitors for respondent: Crown Solicitor's Office

ORDER
Appeal dismissed.

JUDGE1 DEBELLE J This is an appeal against sentence. On 12 November 1993 in the Adelaide Magistrates Court the appellant pleaded guilty to three counts of larceny contrary to s.131 of the Criminal Law Consolidation Act 1985; to two counts of being on premises without lawful excuse contrary to s.17 of the Summary Offences Act 1953; and to one count of giving the police a false name and address contrary to s.74A of the Summary Offences Act, 1953. 2. The three offences of larceny occurred on the one day and at the same premises. On 6 July 1993 the appellant stole $730 in cash from a drawer in the rear of retail premises at Port Adelaide and stole two purses and their contents from employees at those premises. One purse contained eight credit cards and money totalling $9.95. The other purse contained seven credit cards and money totalling $76.90. The appellant was apprehended shortly after and the property was returned to the owners. 3. The facts concerning the first count of being on premises without lawful excuse were that at about 10.40 pm on 14 July 1993 the appellant was seen on the roof of the Lockleys Hotel. Shortly afterwards police officers came to the hotel and the appellant was then seen sitting next to a motor vehicle. He was recognised as the man on the roof of the hotel. When spoken to by the police he gave a false name and address. He also said that he had gone on to the roof to retrieve a football. He later gave his correct name and address and said that his explanation that he went on to the roof to retrieve a football was false. 4. The facts relating to the second complaint of being on premises without lawful excuse were that at about 11.10 pm on 14 October 1993 the appellant was seen on the roof of the Royal Admiral Hotel in the city. Access to the upstairs area of the hotel can be gained through windows in the roof. The appellant told police officers he had gone on to the roof to sleep. The police officers believed the appellant was moderately affected by drugs at the time. 5. The learned magistrate exercised his powers pursuant to s.18a of the Criminal Law (Sentencing) Act, 1988 and ordered one sentence of imprisonment in respect of the offences of larceny, namely, imprisonment for a term of five months. For each of the two offences of being on premises without lawful excuse, the appellant was sentenced to imprisonment for a period of one month, the second to be cumulative on the first and both were to be cumulative on the sentence for larceny. Thus the appellant was ordered to serve a total of seven months' imprisonment. In respect of the offence of giving a false name and address the appellant was convicted without penalty. 6. The appellant appeals against the sentences on the ground that they were manifestly excessive. On the date when he was sentenced the appellant was aged 18 years. This was the first occasion on which he had appeared in court as an adult. However, he had had an appalling record as a minor. The magistrate calculated that his record included 8 offences of breaking into premises, 18 offences for larceny and 20 offences of illegally using a motor vehicle. In addition, I note that the appellant has been convicted of other offences, including a number of offences for assault, breach of bail, being unlawfully on premises, two offences of robbery with violence, and one offence of robbery in company. In all he has committed some 90 separate offences. 7. As Ms Trezise, who appears for the appellant suggests, every allowance must be made for the fact that the appellant has had a difficult life. His mother suffers from schizophrenia, and he has been brought up by an aunt. His family has led an itinerant life, and in consequence he has had a very limited schooling. A psychiatric report described the appellant as having limited intellectual capabilities with special defects in reading and comprehension. All of this calls for a compassionate approach but it is not suggested the appellant does not have the capacity to distinguish between right and wrong. The appellant has experienced, and it appears is continuing to experience, problems with drugs and alcohol. However, even making all due allowance for his difficulties, the appellant's record displays a blatant disregard for property of others and an unwillingness to comply with the law. He has served at least one period of detention, and it is to be noted that these offences occurred very shortly after he had been released from detention. 8. At the forefront of the submissions of Ms Trezise was the contention that imprisonment is a sentencing option of last resort and that the learned magistrate had failed to give sufficient weight to other factors which would have led to a different penalty. Ms Trezise emphasized the appellant's need for rehabilitation and the circumstances surrounding the commission of these offences. 9. As this court has often observed, whenever a young person is before a court, particularly upon his first appearance as an adult, his rehabilitation should be a prominent consideration in fixing sentence: see, for example, R v Weaver (1973) 6 SASR 265. It is, of course, a very serious matter to send a young man to gaol, but that does not mean that a young man should never be sent to gaol upon his first appearance in an adult court. It is necessary always to have regard to all relevant factors, including of course the need for rehabilitation, the circumstances of the offence, the circumstances of the offender, and in this case I particularly emphasise whether he has previously served a period of imprisonment. 10. The remarks made by the learned magistrate demonstrate that he was alert to the fact that all other sentencing options had to be explored before ordering a period of imprisonment. He expressly referred also to the desirability of providing a means of rehabilitation for the appellant. However, he concluded, I think correctly, that in the light of the appellant's previous record, the need for rehabilitation had passed. In this context it is relevant to refer to the remarks of Olsson J in Ienko v Kraft (1990) 53 SASR 40, 45, that the whole tenor of the Criminal Law (Sentencing) Act is that primary emphasis ought to be given to rehabilitation where the evidence indicates that this may be facilitated consistently with preserving a proper balancing of other community interests such as deterrence and adequate punishment for the wrong-doing (emphasis added). In other words, regard is not only to be had to rehabilitation, but also to the other community interests to which Olsson J referred. 11. In this case the appellant's record was such that there was a need for deterrence and adequate punishment for the wrong-doing, factors which were plainly in the mind of the learned magistrate when he sentenced this appellant. On earlier occasions the appellant had entered into a bond to be of good behaviour, but had breached the terms of the bond by offending again. He has been given a suspended period of imprisonment on at least two occasions, and as I have mentioned, he has already served a period of detention on at least one occasion. 12. The appellant, of course, is not to be punished for his past record. The learned magistrate was plainly aware of that. In his sentencing remarks he expressly warned himself that the appellant was not to be punished again for his previous offences. The appellant's record is such that it is clear that he has not learned from his previous experiences and that his previous court appearances, and even sentences of imprisonment, have not acted as any deterrent. The leniency extended by courts on prior occasions has not led to any improvement in his behaviour. It cannot, therefore, be said that the magistrate erred in deciding that, even allowing for the express desire of the appellant to rehabilitate himself, it was nevertheless appropriate to order a term of imprisonment. 13. The circumstances of the offending in relation to the offences of larceny are quite serious. At least a substantial sum of money was involved. Although the money was all soon recovered, and the stealing might have been quite unsophisticated and spontaneous, the offences must be viewed seriously, particularly having regard to the appellant's previous record. Furthermore, the stealing was quite deliberate. Although there was, as Ms Trezise emphasised, a degree of spontaneity, the fact nevertheless remains that the appellant stole from the rear of the premises. It was therefore necessary for him to enter the premises and search the premises to find the three articles which he stole. The offending was of such a nature that it cannot be said that a sentence of imprisonment was inappropriate. 14. An appellate court can interfere with a penalty only if it is convinced that the sentence was manifestly excessive after considering the penalty ordered, having regard to the maximum sentence prescribed for the offence, the standards of sentence customarily observed for the crime, the place of the crime in the scale of seriousness for offences of that type, and the personal circumstances of the offender: see R v Morse (1979) 23 SASR 98. Weighing all of these factors in this case, it cannot be said the penalty in this case was manifestly excessive. 15. I referred already to the personal circumstances of the offender. It is true that he expressed a desire to rehabilitate himself, and the magistrate regarded that expressed desire as sincere. The magistrate nevertheless took the view that his past record precluded any leniency, and although he would have preferred to avoid imprisonment, he nevertheless thought that a sentence of imprisonment was required. The sentence for larceny was well within the discretion of the magistrate, and I do not think there is any basis for interfering with it. It is to be noted that in any event the sentences were at the lower end of the scale for this type of offence. 16. Nor do I think there was any justification for interfering with the two sentences for being on premises without lawful excuse. The magistrate expressly reminded himself the offences involved being on premises without lawful excuse, and not for being on premises for an unlawful purpose. The explanation that is given by the appellant for his presence on the roof of these two sets of premises is entirely unsatisfactory. It should be noted in one case he gave a false explanation, and in the other it was possible to gain entry to the premises via the roof. Here again the penalties were not excessive, having regard to the previous record of the appellant, and the penalties customarily ordered for this type of offence. 17. Ms Trezise submitted that the sentence ought to have been suspended. The sentencing remarks made by the learned magistrate also indicate that he expressly considered whether he should suspend the sentences of imprisonment, but he decided that he should not do so, again having regard to the appellant's prior record. On previous occasions suspension of a sentence imposed on this appellant has obviously not borne fruit and has not resulted in any rehabilitation of the appellant. Having regard to the appellant's prior offending, the imposition of yet another suspended sentence was not an appropriate course. It would have been clear to the appellant that the imposition of a suspended sentence on earlier occasions was a display of trust on the part of the courts. The appellant has abused that trust, and has reached the stage where he is no longer justifying any further clemency from the courts. In this respect I refer to the observations of the Full Court in R v Walker (1981) 27 SASR 315. 18. In my view no error has been shown in the exercise by the learned magistrate of his discretion not to suspend the sentence. 19. For these reasons the appeal is dismissed. There will be no orders as to costs.