Field v Police - [2009] SASC 354

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FIELD v POLICE
[2009] SASC 354
Judgment of The Honourable Justice Gray
20 November 2009
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OTHERS
Appeal against sentence - defendant and appellant entered pleas of guilty to charges of dishonestly taking property without owner's consent, damaging property and being unlawfully on premises - one term of 18 months imprisonment imposed to be served cumulative on unexpired period of parole of two months and 16 days - total non-parole period of 15 months fixed - Magistrate made material error when proceeding on basis that defendant charged with offence of causing "aggravated damage" - Magistrate made material error when proceeding on basis that maximum penalty for charge of damaging property six years imprisonment when maximum penalty was three years imprisonment - sentence reconsidered - whether sentence imposed by Magistrate appropriate regardless of error - whether head sentence and non-parole period manifestly excessive - whether sentence should have been suspended.
Held: appeal allowed - non-parole period reduced from 15 months to 12 months - head sentence imposed by Magistrate appropriate - sentence of imprisonment not suspended.
Criminal Law Consolidation Act 1935 (SA) s 85(3), s 85A and s 134(1); Summary Offences Act 1935 (SA) s 17(1) ; Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 31(2)(a), referred to.
House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; Dinsdale v The Queen (2000) 202 CLR 321; R v Carpentieri (2001) 81 SASR 164, considered.

FIELD v POLICE
[2009] SASC 354
Magistrates Appeal: Criminal
GRAY J.

This is an appeal against sentence.
Introduction
The defendant and appellant, Samuel Troy Field, was charged with three offences committed on 19 and 20 October 2008; namely, dishonestly taking property without the owner’s consent contrary to section 134(1) of the Criminal Law Consolidation Act 1935 (SA), damaging property contrary to section 85(3) of the Criminal Law Consolidation Act and being unlawfully on premises contrary to section 17(1) of the Summary Offences Act 1953 (SA). He was also separately charged with breaching bail.
The circumstances of the offending involved the defendant entering the secured premises of a crash repairer at Murray Bridge through a hole in the fence. Once inside the premises, he smashed the window of a vehicle, causing vehicle and other damage to the value of $6,318.84. The defendant then stole property from the vehicle, including a Global Positioning System unit, a CD player and sound amplification equipment. He was apprehended trying to dispose of this property.
On 27 April 2009, following pleas of guilty to all charges, the defendant was sentenced in respect of the first three offences to the one sentence of imprisonment of 18 months.[1] At the time of the offending the defendant was on parole and as a consequence of the convictions in the present proceeding he became liable to serve the unexpired period of parole of two months and 16 days. This led to a total head sentence of 20 months and 16 days. The sentence of imprisonment of 18 months was required by law to be cumulative upon the unexpired period of parole.[2] The Magistrate set a non-parole period of 15 months with respect to the total head sentence. With respect to the offence of breaching bail the Magistrate imposed a conviction without penalty.
[1] Pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA).
[2] Section 31(2)(a) of the Criminal Law (Sentencing) Act 1988 (SA).
Material misapprehensions
When sentencing, the Magistrate observed:
The penalty prescribed in the Criminal Law Consolidation Act for the act of theft is imprisonment for up to 10 years but there is a limitation when dealing with that offence in this Court. The penalty provided for the aggravated damage to the motor vehicle is imprisonment for up to 6 years but again there is a limitation on the penalty that can be imposed in this Court. The penalty that is prescribed under the Summary Offences Act for being unlawfully on premises is a fine up to $2500 or imprisonment up to 6 months.
During the course of the hearing of the appeal, it became apparent that the Magistrate, when making the above observations, was operating under two material misapprehensions.
The Magistrate appears to have proceeded on the basis that the defendant was charged with an offence of causing “aggravated damage”. No allegation was made that the offence of causing damage involved any matter of aggravation.
The Magistrate also proceeded under the misunderstanding that the relevant penalty with respect to the charge of damaging property contrary to section 85(3) of the Criminal Law Consolidation Act was “imprisonment for up to 6 years”, when in fact the maximum penalty was imprisonment for three years.
Section 85(3) of the Criminal Law Consolidation Act provides:
(3) Where a person—
(a)intending to damage property of another, or being recklessly indifferent as to whether property of another is damaged; and
(b)without lawful authority to do so, and knowing that no such lawful authority exists,
damages, or attempts to damage, property of another, the person shall be guilty of an offence.
Penalty:
(a)for a completed offence—
(i)where the damage exceeds $30 000—imprisonment for 10 years;
(ii)where the damage exceeds $2 500 but does not exceed $30 000—imprisonment for 3 years;
…
[Emphasis added]
It is unclear whether the Magistrate’s misunderstanding related to the nature of the offence charged or to the maximum penalty available in relation to the offence charged. A possible explanation for the Magistrate’s misunderstanding is that section 85A creates an offence with respect to damage to property with a maximum penalty of six years imprisonment.[3] On either view, the Magistrate proceeded under a material misapprehension.
[3] 85A—Recklessly endangering property
(1)Where—
(a)a person does an act knowing that the act creates a substantial risk of serious damage to the property of another; and
(b)the person does not have lawful authority to do so and knows that no such lawful authority exists,
the person is guilty of an offence.
Penalty: Imprisonment for 6 years.
Counsel for the Crown accepted that the Magistrate made a clear error when sentencing. However it was contended that notwithstanding that error, the penalty imposed was the appropriate penalty and in these circumstances the appeal should be dismissed. It is necessary to reconsider the entire sentence imposed. If the Crown is correct in its submission that notwithstanding the error, the appropriate sentence was imposed, then the proper course would be to dismiss the appeal.
The defendant’s antecedents
The defendant was born on 6 August 1984. He has a long history of offences of dishonesty. A number of the offences have been serious offences leading to terms of imprisonment. The defendant’s offending commenced when he was aged 13 years and his offending has continued to the time of the present offences. In July 2000 he was sentenced to a suspended term of imprisonment following multiple offending. However, he breached the terms of the suspended sentence bond, again through multiple offending, and was ordered to serve a period in detention. In June 2003 the defendant was convicted of 50 offences including the offences of non-aggravated serious criminal trespass, multiple larceny offences, receiving, unlawful possession and interfere with a motor vehicle without consent. An immediate custodial term of three years was imposed. In October 2003 the defendant was convicted of the offence of aggravated serious criminal trespass non-residential and being in possession of house-breaking equipment at night. A sentence of imprisonment of 12 months was imposed cumulative on the earlier sentence of three years. The defendant’s non-parole period was extended from 16 months to 20 months. From that time to the time of the present offending the defendant committed a number of motor vehicle offences including in July 2006, the offence of dishonestly taking property without the owner’s consent. The motor vehicle offences also included driving whilst unregistered and driving uninsured motor vehicles.
Unsurprisingly, the defendant came from a troubled background. His father had criminal antecedents, primarily for offences of dishonesty. His parents separated when he was three and there was an ongoing and bitter court dispute about custody and access. He was in trouble at school, repeatedly fell foul of authorities, became aggressive at home and spent time in the Magill Training Centre. He was expelled from school during Year 8.
The defendant has had several short term relationships, one of which lead to the birth of a son in 2003. He is presently in a relationship and his partner, who was pregnant at the time of sentencing, has now given birth to their child. The defendant’s son lives with him and his present partner. His employment history is poor. He has held short term, unskilled employment in the mechanical and labouring fields. He has, from time to time, been dependent on government support. The motive behind his offending was to obtain money to supplement his government support.
In a pre-sentence report the defendant was described as follows:
The defendant has a very significant criminal record for a 23 year old man. Anti-social attitudes, poor problem solving/decision making skills, impulsivity, drug usage and the underlying causes of the drug usage are areas which need to be addressed if [the defendant] is to curb his offending. He is quoted in the 2004 parole report as stating that although his mother attributed his offending behaviours to his upbringing, he considered that he had made the choices to offend. Survival skills learned during a period when he lived “on the streets” have led to more dire consequences as his record has lengthened.
The department intends to introduce a cognitive skills based program (Making Choices) later this year, which could be of benefit to [the defendant]. Unfortunately it will be held only in the metropolitan area (and in some prisons), but if necessary he could travel to Adelaide to participate once a week, if assessment proves that he would be eligible to enter the program.
The author addressed the indicators of the defendant’s responsiveness in the following terms:
[The defendant’s] supervision whilst with juvenile authorities had mixed responses according to the parole report of 2004. He breached bonds in 1998 and 2001 and several breaches of bail agreements are recorded. Some of his offending has occurred whilst he has been on bail. He completed a period of Home Detention in 2002 but home detention was cancelled in 2003 by him not being at the designated residence. He was at that time on Drug Court conditions.
He was imprisoned on 11/07/06 for the offences of Drive Under Disqualification, Dishonestly Take Property Without Owner’s Consent and sentenced to 2 years 6 months and 19 days which included cancelled parole of 2 years and 19 days. Departmental records inform that [the defendant] was released to parole in January 2007 with regard to the above offences.
He was reported to the Board for breaches of parole regarding the use of Cannabinoids, failure to report and failure to attend Court in relation to further alleged offences, with the result that his parole was cancelled between 25/10/08 and 13/11/08. He then reported compliantly until the end of his parole on 21/01/09. However, the Board has still to decide if it will take action over a positive urinalysis test taken just prior to the end of his parole period and may wait to consider this breach until current Court matters are finalized and it is determined whether a custodial sentence and subsequent cancellation of his parole will occur.
Finally, the author of the report addressed the effects of imprisonment on the defendant’s son:
According to [the defendant’s], his young son Zachary will be cared for by his current partner if he is imprisoned, despite the fact that she is expecting their child shortly. Given that the child has been cared for by both his biological parents in unsettling circumstances, further separation from his father could have an undesirable effect upon him.
The Magistrate’s sentencing remarks
The Magistrate provided lengthy sentencing remarks. He sympathised with the difficulties arising from the defendant’s background. The Magistrate noted that the defendant made full admissions to the police upon his arrest followed by pleas of guilty. The Magistrate made a reduction of 25% on account of his pleas.
The Magistrate when addressing the seriousness of the defendant’s offending remarked:
Your offending is particularly serious because it was committed at night with the intention of stealing. It was committed on commercial premises and it involved you entering into a secure area when no-one employed or managing those premises was present. It involved you in causing extensive damage to a motor vehicle intending to steal the various items inside the motor vehicle. Your reason for offending was obviously to obtain money. There is no suggestion you intended to use that money for further illegal purposes such as purchasing drugs and the like but rather to maintain you and your current partner and your child. Notwithstanding that, imprisonment is the only penalty that is appropriate in your case. I say that because at the time you committed that offence you were still subject to parole conditions and the parole followed your imprisonment for other offences of dishonesty and serious offences of dishonesty at that. You need to understand that at 24 years of age you are an adult person. You are responsible for your actions. While you come from a very difficult background and I have the utmost sympathy for the predicament you are in you have to realise you are responsible for what you do and if you get caught for dishonest activities you also have to stand up and accept the appropriate punishment for that. Any penalty to be imposed upon you must contain a substantial deterrent element to bring home to you the seriousness of what you did but also to bring home to others who are minded to go about at night and steal other people’s property that if they are caught there will be a very real penalty imposed upon them.
The Magistrate determined to exercise his powers under section 18A and imposed the one sentence in respect of the first three offences. He said:
I start from a head sentence of 2 years imprisonment. I mentioned earlier you are entitled to some credit for having pleaded guilty and to reflect the credit I reduce the 2 years down to 18 months imprisonment. That is a discount in the order of 25%. Given that I have ordered imprisonment Section 75 of the Correctional Services Act is relevant. As I understand the pre-sentence report there is an outstanding period of 2 months and 16 days of your previous parole. That makes a total head sentence of 20 months and 16 days. I fix a non-parole period of 15 months.
The Magistrate then addressed the particular submission that had been put that the sentence should be suspended because of the defendant’s responsibilities to his young son:
Your counsel has argued that I should allow for a suspended sentence of imprisonment having regard to your responsibility to your son. Under the Criminal Law Consolidation Act I am required to have regard to the affect of any penalty on your family and family matters. I feel sympathy for your son because I fear that if you continue the way you have over the past 10 years or thereabouts you are going to pass on to your son the difficulties that you have had in the past. That would be an absolute tragedy. Your child needs you to give proper direction to keep out of trouble and therefore avoid the pitfalls that you have suffered over the past 10 years.
I have considered your relationship to your son but I am sorry to say it is not sufficient to allow for a suspended sentence of imprisonment. You will have to serve the time. I do hope that when you are released that you lead a law-abiding lifestyle and teach your son and any other children to lead a law-abiding lifestyle. I would hate to see them following in your footsteps.
The Appeal
On appeal it was accepted that it was appropriate for the Court to impose a term of imprisonment with respect to the defendant’s offending. It was also agreed that it was appropriate to impose the one sentence for the three offences pursuant to section 18A of the Criminal Law (Sentencing) Act. However it was contended that both the head sentence and non-parole period were manifestly excessive. Further, it was contended that the sentence of imprisonment imposed should have been suspended.
As earlier observed, the Magistrate embarked on the task of sentencing while under the material misapprehensions referred to earlier. In these circumstances, his approach to sentencing was flawed and accordingly, it is necessary for the entire sentence to be considered afresh.[4] As a consequence, it is unnecessary to consider the further complaints said to support the appeal against sentence. However, I have considered all of the matters raised by counsel for the defendant in my reconsideration of the appropriate sentence to be imposed.
[4] House v The King (1936) 55 CLR 499 at 504 - 505; see also Markarian v The Queen (2005) 228 CLR 357 and Dinsdale v The Queen (2000) 202 CLR 321.
It is appropriate to have regard to further material that has come to light between the date of sentencing and the hearing of the appeal. In that respect, three matters arose for consideration. At the time of sentencing, the defendant’s partner was pregnant. She has now given birth to their child. In addition, a detailed report was tendered as to the rehabilitation courses undertaken by the defendant while in custody. This was said to evidence his determination to rehabilitate. Finally, a letter from a potential employer was tendered, indicating that there was work available for the defendant on his release on parole. I will refer to these matters later in these reasons.
At the outset, it is to be noted that the defendant’s offending involved a circumstance of aggravation, namely his breach of parole. The prior offending involved dishonesty. Further, the defendant’s criminal antecedents precluded the Court extending leniency that might otherwise be afforded a first offender.
In my view, the defendant does have prospects for rehabilitation. The further material placed before this Court evidences steps taken by him in that regard. The report from the Senior Social Worker at Mobilong Prison, records that between July and September 2009, the defendant completed a number of multiple session Alcohol and Other Drugs Programs. Those sessions addressed motivation to change behaviour, harm minimisation, strategies for overcoming drug addiction and strategies to deal with lapses, relapses and high risk situations. The defendant also completed a five session Victim Awareness program and a parenting program. The author of the report noted that a number of the programs were of a volunteer nature and that the defendant’s attendances disclosed that he had a clear understanding of the problems he faced and that he expressed an interest in his rehabilitation. It was also recorded that he had returned a negative reading on his last drug test.

It would appear that the defendant’s rehabilitation will be dictated by his ability to avoid drug and alcohol use and abuse. As earlier discussed, a letter offering the defendant employment once released on Home Detention was received by the Court. Although this employment would appear to be unskilled and casual, it is in my view significant that the defendant has taken steps to attempt to arrange employment. The above matters suggest that there is some prospect of success in that regard. He also has a family awaiting his return from imprisonment.
Having regard to the brazen nature of the defendant’s offending, the circumstance of aggravation and his criminal antecedents, a head sentence of 18 months is, in my view, the appropriate sentence. In arriving at this head sentence, it is appropriate to make a reduction of 25% on account of the acknowledgment of guilt to the police at the earliest opportunity and the early plea.
I do not consider that it is appropriate to exercise my discretion to suspend the term of imprisonment. As earlier discussed, the defendant has a long criminal record for dishonest conduct and has been sentenced to orders for immediate imprisonment in the past. His present offending occurred while he was on parole and occurred in breach of the terms of that parole. In the ordinary course, his personal background would not give rise to any basis on which to suspend the term of imprisonment. The only further factor for consideration relates to the hardship to his dependants. In particular, reference was made to his young son, but the material before the Court discloses that while he has been in prison, his present partner has cared for the child.
It has been long accepted that hardship to dependents of a defendant is not generally to be taken into account in the defendant’s favour other than in extreme or exceptional cases. Doyle CJ in Carpentieri[5] summarised the relevant authorities in the following passage, which I respectfully adopt:
Section 10(1) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) directs that a sentencing court should have regard to a number of matters including the probable effect of any sentence on dependants of an offender. That section has been interpreted as not altering the common law principles: R v Adami (1989) 51 SASR 229; R v Mangelsdorf (1995) 66 SASR 60 at 70. The same view has been taken of a similar provision in the Crimes Act 1914 (Cth): R v Sinclair (1990) 108 FLR 370 at 376-383.
The common law principle was stated by Wells J in R v Wirth (1976) 14 SASR 291 at 295-296:
"The argument thus presented to us raises the following question: When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the court in mitigation of that sentence? Hardship to spouse, family and friends is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court   It seems to me that courts would often do less than their clear duty — especially where the element of retribution, deterrence, or protection of society is the predominant consideration — if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so   For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go."
The judgment in Wirth has frequently been cited by appeal courts with approval. In R v Edwards (1996) 90 A Crim R 510 Gleeson CJ, with whom James and Ireland JJ agreed, cited the above passage from Wirth and pointed out that the real difficulty in many cases is to identify a ground upon which the hardship to a third party "can properly and relevantly be regarded as exceptional". His Honour observed that causing hardship to third parties by the imprisonment of an offender is very common and emphasised the importance of examining the nature and extent of the hardship that would follow the imposition of a sentence of imprisonment.
[5]    R v Carpentieri (2001) 81 SASR 164 at [16] - [18].
In my view, the circumstances of the defendant, including the probable effect of a sentence of imprisonment on his dependents, are not such as to give rise to good reason to suspend. I decline to exercise my discretion to suspend the sentence of imprisonment.
This sentence is to be served cumulatively on the unexpired period of parole; namely a period of two months and 16 days. This leads to a total sentence of 20 months and 16 days.
I consider it is appropriate to fix a non-parole period of 12 months in lieu of the 15 month period fixed by the Magistrate. In particular, as earlier discussed, I consider the defendant does have some prospects of rehabilitation and the shorter non-parole period may facilitate this process.
Conclusion
Having regard to the matters discussed above, it is appropriate to allow the appeal for the limited purpose of reducing the non-parole period from 15 months to 12 months. Otherwise the sentence of the Magistrate is confirmed. The sentence is to commence on the date the defendant was sentenced by the Magistrate, 27 April 2009.