Federici v Police No. Scgrg-98-1259 Judgment No. S95

FEDERICI v POLICE
[1999] SASC 95

Magistrates Court

MULLIGHAN J This is an appeal against sentence.
The appellant was charged with four offences and another in the alternative on one information. and three offences on another information.
On the first information he was charged with breaking and entering a dwelling house on 16th May 1998 and stealing various items to the value of $890. An elderly woman lived at the house and the stolen property belonged to her. He was also charged with attempted false pretences in that he attempted to obtain money for some of these items from a second-hand dealer. The third charge on this information was the offence of unlawful possession which occurred on the same day and related to other property of limited value. The fourth charge was obtaining money in the sum of $20 by false pretences from a second-hand dealer by falsely pretending that he was the owner of a watch.
The second information charged him, on the same day, with two counts of receiving. The value of the property was about $1,100. He was also charged with providing false information to a second-hand dealer contrary to s20(2) of the Second-hand Dealers and Pawnbrokers Act 1996.
The informations came on for hearing before a learned Magistrate and the appellant pleaded guilty to all of the charges, except the charge laid as an alternative and did so at an early opportunity. The learned Magistrate applied s18A of the Criminal Law (Sentencing) Act 1988 and imposed one sentence with respect to the offences charged on each information. The sentence in each case was imprisonment for two years and three months to be served cumulatively.
At the time of this offending, that appellant was at liberty on parole. He had been convicted of various offences on 2nd May 1997 at the Magistrates Court at Port Adelaide and sentenced to terms of imprisonment which, together with the unexpired portion of previous sentences, resulted in a total head sentence of four years, ten months and eleven days. A non-parole period of twelve months was fixed.
At the time of committing the subject offences, the unexpired balance of that head sentence was three years, nine months and twenty four days. The learned Magistrate ordered that the sentences which he imposed were to be served at the expiration of this period.
The circumstances of the offences charged on the first information are that the appellant broke into a dwelling house and stole various items, some of which he took to the pawnbroker and second-hand dealer immediately after he had stolen them. He represented that he owned them in order to sell them for cash. The appellant returned later in the day with other items. The employee to whom he spoke was suspicious of him and contacted the police who attended and arrested him. Some of the stolen items were not recovered. The appellant denied the allegations and told a false story to the police.
The offences charged on the second information involved the receiving of goods stolen after the breaking into two dwelling houses which were sold to a pawnbroker and second-hand dealer. The appellant denied committing the breaking and entering and larceny offences but admitted receiving the stolen goods and trying to sell them. He refused to say from whom he had received the goods.
According to the appellant, he had met up with two men who were users of heroin. He was in a motor car with them when they committed various offences. He was involved on the spur of the moment. He drove the motor car used in the breaking and entering and he attempted to sell goods to the pawnbroker and second-hand dealer. The appellant is addicted to heroin and he committed the offences to obtain heroin as his addiction had been re-activated.
It is appropriate to consider the background of the appellant in a little detail. He is aged 33 years. He is the youngest child of a family of five children. He has four sisters. His parents separated in 1988. His father was frequently absent from the home and a heavy drinker. The appellant has an excellent and close relationship with his mother and sisters. He was educated to year 10 and had various jobs upon leaving school.
The appellant has an extensive past criminal record. He first appeared in what was then called the Children’s Court in 1982 on charges of driving an unregistered and uninsured motor vehicle, and soon after was before the court on serious charges of burglary, breaking and entering and larceny. In 1984 he first appeared in adult courts on drug charges and in 1986 he was convicted of two counts of rape in this Court, and sentenced to imprisonment for five years and six months. He was also convicted of one count of attempted rape and sentenced to imprisonment for three years. I assume those sentences were served concurrently. The offences were committed in December 1983. He says that whilst in prison he was introduced to heroin and has been dependent on that drug ever since.
Upon his release from prison, he was consistently before the courts on various charges, including many serious charges of breaking, entering and larceny, receiving, false pretences, larceny, possessing house breaking implements, burglary, forgery and illegal interference with motor vehicles. He was sent to prison on occasions. In all, he has spent twelve years of his life in prison which is nearly all of the period since he was taken into custody on the rape charges. In all, he has breached conditions of parole on five occasions by committing offences and parole was cancelled.
The last occasion the appellant was released on parole was on 1st May 1998 and he committed the offences relevant to this appeal 15 days later.
The learned Magistrate made extensive remarks when sentencing the appellant. He mentioned the extensive criminal record of the appellant and that he had committed offences while at liberty in the community on parole on six occasions which is a miscalculation but is of little consequence for present purposes. He expressed the view that if released without serving the head sentence, history would be repeated. He said that it was in obedience to the totality principle that he ordered that the respective sentences of imprisonment be served concurrently.
The grounds of appeal are that, in all the circumstances of the offences and the appellant, the sentences imposed were manifestly excessive, that the learned Magistrate erred in failing, or in the alternative, failed adequately, to have regard to the principle of totality and that he erred in declining to fix a non-parole period as there was a strong indication that the appellant was capable of, and motivated to, rehabilitate himself.
The first matter argued was that the learned Magistrate did not have regard, or sufficient regard, to the appellant having been in custody with respect to the offences for which he was to be sentenced for three months, one week and one day. He could not backdate the commencement of the cumulative sentences which he imposed because they had to be served at the conclusion of the appellant’s serving of the unexpired portion of his then outstanding sentence: see s31(2) of the Criminal Law (Sentencing) Act 1988. If the appellant was to have the benefit of his having been in custody on remand, that benefit could only be given by reduction of the sentences. In his remarks as to penalty, the learned Magistrate said that he noted that the appellant had been in custody on remand and in that context referred to s31 of the Criminal Law (Sentencing) Act. Whilst he did not say that he had reduced the sentence for that reason, it is clear that he did so. I interpret his remarks as to sentence as indicating that he considered that the appropriate total head sentence was two years and six months with respect to the offences charged in each information.
The next complaint is that these sentences are manifestly excessive because they exceed the tariff discussed in The Queen v Halse (1985) 38 SASR 594. In that case King CJ suggested that an offender with a bad record should receive for a single offence a sentence in the range of two years and six months to two years and nine months reduced for pleas of guilty or other mitigating circumstances. The appellant pleaded guilty at an early stage of the proceedings and should have received a significant reduction in his sentence. If the reduction is twenty-five per cent and no other matter had to be considered and such a tariff is applied, a sentence of between twenty two and a half months and twenty-six months would be justified. If the reduction on account of the pleas of guilty is less than twenty-five per cent, say twenty per cent, the appropriate sentence would be greater. A reduction in that order could not be said to be inappropriate. There are no other obvious reasons to reduce the sentence further. Given the appalling record of the appellant, the starting point could well be higher than two years and six months or two years and nine months. Furthermore, the appellant had not committed only a single offence. I do not think there is any justifiable reason to challenge the sentence on this ground. I mention that Halse was decided prior to the commencement of the scheme of remissions of sentence introduced by s302 of the Criminal Law Consolidation Act 1935 which came into operation on 8th December 1986 and did not operate retrospectively. Hence, the tariff discussed in Halse applied in circumstances such as the present following the Statutes Amendment (Truth in Sentencing) Act 1994 which abolished statutory remissions.
The appellant also complains about the sentence on the ground that the learned Magistrate failed to take into account adequately the unexpired portion of the previous sentence when fixing the sentences of two years and three months. The principle of totality does not apply in that exercise but the unexpired portion of the previous sentence is part of the personal circumstances of the appellant which must be taken into account: The Queen v Margetson (1987) 139 LSJS 325, The Queen v Rossi (1988) 142 LSJS 451, Chandler v The Queen (1994) 62 SASR 558 and Postiglione v R (1997) (1997) 189 CLR 295. The learned Magistrate was well aware of the personal circumstances of the appellant, including his past record, and there was no error in the way in which he brought them to account. There may be occasions when the cumulative effect of serving the unexpired portion of an earlier sentence and the sentence imposed will be so crushing that the sentence to be imposed should be reduced. Examples are to be seen in Margetson and Rossi. Indeed, in Postiglione, McHugh J appears to have accepted an argument that the totality principle is to be applied when having regard to an unexpired portion of a previous sentence: see p308. It is unnecessary for present purposes to consider that question of principle. The learned Magistrate had due regard to the unexpired portion of the sentence. He ordered that the two sentences which he imposed should be served concurrently even though they were imposed for separate and distinct courses of conduct. In consequence, the effect of the sentences imposed was reasonable, moderate and justified in all of the circumstances. The totality of the sentences was proportionate to the totality of the criminality of the appellant.
A further submission was made on the totality principle. As has been mentioned, the appellant had been sentenced to a term of imprisonment for earlier offences on 2nd May 1997. Prior to his release on parole on 1st May 1998, he had been in prison serving those sentences for twelve months and upon being apprehended for the present offences was returned to prison. Consequently, he had been in prison since 2nd May 1997 except for the period of 15 days when he was at liberty on parole. This matter is of little significance in the consideration of the totality principle as the appellant was given due credit for all time that he had spent in prison.
In my view, there is no reason to interfere with the sentences. They are not manifestly excessive and the learned Magistrate did not err in the exercise of his discretion. The appeal against the sentences must fail.
I now turn to the order made by the learned Magistrate declining to fix a non-parole period.
S32 of the Criminal Law (Sentencing) Act is as follows:
“32(1)....... Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must -
(a).... if the person is not subject to an existing non-parole period - fix a non-parole period; or
(b)if the person is subject to an existing non-parole period - review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or
(c).... if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period - fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.
(2)... Where the sentence of imprisonment is imposed for an offence committed during a period of release on parole from a previous sentence of imprisonment, the court, in fixing a non-parole period under subsection (1)(a) must have regard to the total period of imprisonment that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.
(3) [N/A]
(4)... [N/A]
(5) The above provisions are subject to the following qualifications:
(a).... a non-parole period may not be fixed in respect of a person who is liable to serve a total period of imprisonment of less than one year;
(b)where a person who is subject to a sentence of life imprisonment is further sentenced to imprisonment by the Magistrates Court or the Youth Court, the question of whether a non-parole period should be fixed or extended must be referred to the court by which the sentence of life imprisonment was imposed;
(c).... a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of -
(i).... the gravity of the offence or the circumstances surrounding the offence; or
(ii)the criminal record of the person; or
(iii).. the behaviour of the person during any previous period of release on parole; or
(iv)any other circumstance.”

It may be seen that this section imposes the obligation to fix a non-parole period in the present circumstances subject to the qualification in s32(5)(c).

The learned Magistrate expressed his reasons for declining to fix a non-parole period as follows:
“The experiment in releasing the defendant from custody on parole again has not worked. He has made promises which were broken within a matter of 15 days and again members of the community have suffered.
...
The defendant has found himself back again in the wrong company and unfortunately for him has succumbed to the temptation not only to reintroduce himself to his heroin habit but to spend money earned by him in custody on it and thence to find it necessary to participate in the very sort of criminal activities which have caused him so much trouble in the past. His loyalty to others, or mateship, or whatever it is called, must be seen in perspective rather than through rose-coloured glasses.
Whilst the defendant’s past record of offending is not unreasonably to dictate the sentencing approach here, there are some inescapable conclusions from his past which must assume prominence.
....
In my view it is inappropriate to fix a non-parole period here by reason of the gravity of the offences, given the defendant’s offending background, the fact that within 15 days after release on parole he re-offended and committed offences for which he was previously sentenced to custodial terms, his previous bad record, and all the circumstances to which I have referred. In my view, if released without serving the term, the defendant will cause history to be repeated.”
It is necessary to mention a little more about the background of the appellant.
The appellant has never overcome his addiction to heroin. The learned Magistrate was informed that all of his offending since he became dependant on that drug was related to this addiction. It appears that the learned Magistrate misunderstood the information which had been placed before him. In his remarks as to penalty, he said that the appellant had a heroin problem but he went on to say:
“... although the defendant in the past has, to quote information appearing in one of the reports, ‘believed that his offending was in the majority not drug-related but due to inappropriate responses to the situation or situations in which he found himself placed at the time.’”
The learned Magistrate was referring to a part of the report of the Parole Board dated 16th February 1998 which is a statement of what the appellant had said he believed. However, that report and an earlier report which were before the learned Magistrate indicated that he did commit offences to obtain money for his addiction. This earlier report was a pre-sentence report which was obtained when the appellant was before the Magistrates Court at Port Adelaide on 2nd May 1997. The report made it clear that the appellant’s previous offences since his drug addiction were “committed almost exclusively to fund his heroin habit”. The probation officer went on to express the view that when sentences had included supervision in the community, including when he was on parole, the appellant did not take advantage of these opportunities to positively address his dependence.
When the present sentences were imposed, the learned Magistrate also had before him a report from the Parole Board which was prepared a few months before the appellant was released on parole. In that report it was stated that the appellant committed offences to service his drug habit.
It appears that the learned Magistrate acted on the basis that the appellant’s past offending was not drug related. The information before him was to the contrary and the learned Magistrate made an error in fact. It is an error of some importance.
The report of the Parole Board was very favourable to the appellant. I mention some matters. It stated that he had progressed well whilst in prison. He was remorseful and contrite about his prior offending and the victims. He had gained maturity and possibly new coping skills after completing a particular skills programme. He had the support of his family and, particularly, his mother. His attitude about rehabilitation was positive. He had established sensible proposals for accommodation and support in the community.
I mention some further circumstances of the appellant of which the learned Magistrate was informed.
Whilst in custody at Port Lincoln under the most recent sentence, he developed a close relationship with a woman he had met some years earlier. They planned to live together. The appellant had saved money from his prison earnings. Upon his release, he learned that the woman had commenced, or would shortly commence, a relationship with another man. He was distressed and, having no alternative accommodation in Port Lincoln, he travelled to Adelaide to seek the support of his family. Upon his arrival, he unexpectedly met an old acquaintance whom he knew to be a user of heroin. He was offered, and took, heroin and within a week had lost all of his savings. He was again using heroin.
The learned Magistrate was also informed that the appellant was determined to overecome his drug addiction. He proposes upon eventual release to undertake long term residential drug rehabilitation programmes. He intends to live with his sister interstate so that he can benefit from her support. Also, he intends to undertake suitable programmes in prison. It was submitted that the available evidence indicates that the appellant had reached a turning point in his life when in prison, and the rejection by the woman had a deleterious effect upon him.

There is no reason to reject any of these submissions as many of them are supported by the two reports.
In exercising the discretion under s32(5)(c), the learned Magistrate gave emphasis to the matters set out in ss5(c)(ii) and (iii). Clearly, he regarded the criminal record of the appellant and his offending whilst on parole as matters of paramount importance for all practical purposes to the exclusion of all other matters.
In my view, the learned Magistrate erred in taking that approach. Under the legislative predecessor to s32, in circumstances such as the present, the Court was obliged to fix a non-parole period unless there was “special reason” for not doing so: s65, Correctional Services Act 1982 (now repealed). Special reason was discussed by King CJ in The Queen v Von Einem (1985) 38 SASR 207 at p221:
“It is unnecessary, and perhaps undesirable, for the Court to endeavour to explore exhaustively the circumstances which might amount to special reason under the section. Generally speaking, in my opinion, special reason for not fixing a non-parole period will be found where a prisoner’s record, and in particular his record of failure to respond to bonds, suspended sentences and parole in the past, lead reasonably to the conclusion that he would be unlikely to respond to parole in a positive way.”

These observations were cited with approval in subsequent cases, eg Elliott v Tepper and Elliott v Brophy (unreported, 17th December 1985 per Matheson J), Flentjar v Wright (1986) 42 SASR 246 per Johnston J at p260. These circumstances now largely find expression in s32(5)(ii) and (iii).

The position before s32(5)(c) was that in circumstances such as the present, a non-parole period had to be fixed unless there was “special reason” not to do so. The present position is that a non-parole period must be fixed unless the court is of the opinion that it would be inappropriate to do so. As Cox J pointed out in Martin v Police (1993) 168 LSJS 344 at p345:
“The expression ‘special reason’ suggests something more distinctive and exceptional, more ‘special’ than the substituted formula requires.”

He went on to say:

“However, it may not make much difference in practice. If there is a shift in meaning, it would appear to be one favourable to a defendant. The need for the court to address its mind to the question and to indicate its conclusion expressly has not diminished; hence, I presume, the rather curious reference to the court’s exercising this power ‘by order’. However, I see no reason to think that the principles laid down in Flentjar v Wright with respect to s65 of the Correctional Services Act will not apply equally to cases arising under s32 of the Sentencing Act. In the case of a long sentence, in particular, it will still be beneficial, in the general run of cases, to fix a non-parole period, even though the defendant is a dubious prospect for parole and the appropriate non-parole period will not be much shorter than the head sentence. The reasons for that are explained by Johnston J in Flentjar v Wright.”

Flentjar v Wright was a case involving a long prison sentence, five years and six months, as has occurred in the present case, effectively about six years. In that case Johnston J, with whom the other members of the Court agreed, discussed the utility of fixing a non-parole period at a little shorter than the head sentence. In his consideration of the matter, Johnston J spoke, at p262, of the “opportunity of harmonizing the perceived short term interest of the public to have the prisoner removed from the society with the longer term interest of the prisoner in rehabilitation and the longer term interest of the public in his rehabilitation”.

In R v Ashdown (1994) 72 ACrimR 63, Prior J had this to say about s32 and, in particular, s32(5)(c):
“The power in this paragraph is a power to do something adverse to a person sentenced to imprisonment. The mandatory requirement to fix a non-parole period is qualified when a circumstance can be identified that justifies denying the benefit that results from the fixing of a non-parole period.
The duty to fix a non-parole period cannot be ignored or waived because of any confident expectation that a suspended sentence of imprisonment was not likely to be served. The structure of the legislation requires that a non-parole period be fixed in all but the most exceptional cases.”
In my view, it is not sufficient reason to exercise the discretion to decline to fix a non-parole period merely because the offender comes within one of the criteria in s32(5)(c). The fact that he does so merely agitates the discretion. All matters relevant to the offending and the offender must be considered when exercising that discretion, including the matter or matters which have agitated the exercise of the discretion. If the position was otherwise, the section would not be expressed in discretionary terms.
This is a long head sentence. The bad record since 1984 or thereabouts is largely due to the appellant’s heroin addiction and the human weaknesses which have caused that problem. The appellant has breached parole conditions on each occasion, but for the same reason. The independent assessments of him in 1997 and 1998 are very positive. When he is released from prison some years from now, he will be significantly older and hopefully more mature. Further programmes and training are likely to improve his prospects of rehabilitation. If he receives encouragement, he should not lose his present strong resolve to rehabilitate.
All of those matters militate against exercising the discretion not to fix a non-parole period.
I think the learned Magistrate erred in the manner in which he exercised the discretion by not having due regard to those matters and by the mistake of fact as to the offending not being drug related. The order declining to fix a non-parole period is set aside and the appeal is allowed for that purpose.
It remains to fix a non-parole period. As the appellant is to serve a long sentence, I think there should be a significant non-parole period to assist in his rehabilitation and adjustment to life in the community whilst under strict conditions of parole which hopefully will include drug rehabilitation and living skills programmes.
I fix a non-parole period of four years and six months.

[1999] SASC 95

24 March 1999