FORBES v Police - [2004] SASC 311

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FORBES v POLICE
Judgment of The Honourable Justice Anderson
30 September 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
The appellant was involved in a Drug Court program, whilst on the program a false positive result was obtained from his urine analysis - the appellant breached his bail and committed several offences - he pleaded guilty to the offences which were mainly dishonesty offences - the Magistrate imposed a head sentence of three years and seven months with a non-parole period of two years and three months - the Magistrate took into account the appellant's guilty plea and time already served in custody and on home detention - appeal on grounds that: sentence manifestly excessive, the Magistrate failed to take into account the appellant's prospects of rehabilitation, and that the Magistrate failed to take into account the appellant's efforts in the Drug Court program. Held: the appellant had made efforts to rehabilitate himself in his involvement in the Drug Court program despite some lapses, he has prospects of rehabilitation and had earlier obtained employment. Appeal allowed: head sentence of two years and six months with a non-parole period of fifteen months to be backdated to 31 March 2004.
Criminal Law (Sentencing) Act 1988 (SA), referred to.

FORBES v POLICE
[2004] SASC 311

ANDERSON J This is an appeal in relation to a penalty imposed by a Magistrate on 2 June 2004.
The appellant had pleaded guilty to a number of charges, some dealing with traffic offences, and others predominantly being offences of dishonesty.
The driving offences included driving an unregistered and uninsured vehicle, permitting a person to drive an unregistered and uninsured vehicle, driving whilst unlicensed, failing to stop, driving at a speed dangerous to the public, driving contrary to a defect notice, and driving whilst disqualified.
The offences involving dishonesty included unlawful possession of property, making false statements to a second-hand dealer, larceny of a mountain bike, and unlawful possession of an outboard motor amongst other things.
On 7 February 2003 the appellant breached his bail, and then followed the charges of larceny of a pair of shoes, carrying an offensive weapon, namely, house-breaking implements, giving a false address to the police, and larceny of DVDs from Big W. In addition, whilst part of the Drug Court program, the appellant, on 21 March 2004, committed an offence of non-aggravated serious criminal trespass, and larceny involving about $5,000 worth of property.
At that stage the appellant was wanted for failing to attend court whilst on the Drug Court program.
The appellant had entered the Drug Court program on 22 October 2003 which was the day he was released on custody. The learned Magistrate describes his progress on the program as “very poor”, at [7]. He said, at [7-8]:
“The participation and the report completed by your case manager on 30 April tells the story.
Your drug use was erratic, you often failed to attend and, in fact, less than half of all urine tests that you provided were negative. There were 28 negative tests, 15 failures to appear, 14 positive tests, and one occasion when you attended, but failed to provide a sample. You also re-offended and very significantly re-offended whilst you were on the program.”
The learned Magistrate imposed a sentence pursuant to s18A of the Criminal Law (Sentencing) Act 1988 (SA) and took into account all matters in that sentence including the previously suspended sentence. He backdated the sentence to 31 March 2004 and imposed a head sentence of three years and seven months and a non-parole period of two years and three months.
The learned Magistrate took into account the guilty pleas and indicated that the head sentence should start at three years and six months, but then he had to take into account the suspended sentence and made that cumulative upon his new sentence, making it up to four years. He then considered what he described as the “very limited progress on the drug court program”, at [12], and gave credit for the time spent in custody and on home detention which were respectively two months and sixteen days, and four months and twenty-four days. He reduced both the head sentence and the non-parole period by five months, coming up with the final figure of three years and seven months with a non-parole period of two years and three months.
The appellant complains that the sentence is manifestly excessive, having regard to an error in conclusions the learned Magistrate made relating to the participation report in the Drug Court program and a failure to take into account the prospects for the appellant’s rehabilitation. It was argued that the Magistrate gave no or insufficient weight to the prospects of rehabilitation.
The appellant has been a heroin addict for all of his adult life, in fact since about the age of seventeen. Mr Apps, for the appellant, emphasised that it was no small feat to enter into the Drug Court program. It was an onerous regime, he said, and anyone entering into it must be given credit. Mr Apps also submitted that it is inevitable that with such an addiction there will be lapses.
It was submitted that his Honour erred in taking the very adverse view that he did of the appellant’s participation in the Drug Court program. He described the progress as being very limited. There are, however, favourable indications in the report which the appellant says were not given any weight by the learned Magistrate.
In particular, during a period where his attendances in the Drug Court program became erratic, the fact is that the appellant had obtained employment and was working as a fencing contractor. This was the first employment he’d had for some considerable time, and whilst employed in that capacity it was obvious that he was both healthier and more optimistic in relation to his future. He was working long hours each day and missed some appointments.
Unfortunately at this time when he attended for a routine urine analysis, a false positive report was obtained. This panicked the appellant and he departed from the program and committed further offences. As I have indicated, the urine analysis report was misleading because on a subsequent analysis it was found to be negative.
Mr Apps submitted that the Magistrate failed to take into account the efforts which the appellant had made in his attendance at the program and in his successful attempts at employment. Matters only went wrong when the false positive result was obtained.
Mr Jacobi, for the Crown, argued that the report itself must be looked at in light of the many individual reports along the way required as part of the Drug Court program. He took me through, as part of his argument, these reports and emphasised his points from those reports.
At the end of the day, it is my view that whilst those individual reports do tell a more detailed story at different stages, the overall impression of the final participation report is a reasonable reflection of the reports obtained along the way.
The report contains both positive and negative comments, and I believe that the learned Magistrate erred in not referring to any of the positives, and thereby did not properly take into account the prospects of continued rehabilitation.
It is inevitable with an addiction of such long standing that once an attempt is made to rehabilitate, there will be unfortunate lapses. Providing there is a realistic outlook for continual improvement in amongst some set backs, it is my view that the set backs should not be used to unnecessarily penalise the appellant.
I therefore reduce the head sentence, including the additional period of six months from the earlier suspended sentence, to a term of two and a half years. To assist with further rehabilitation, I have decided to reduce the non-parole period to fifteen months, both to be backdated to 31 March 2004.