Foster v Police - [2008] SASC 291

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FOSTER v POLICE
[2008] SASC 291
Judgment of The Honourable Justice Kelly
31 October 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appellant pleaded guilty to offences of serious criminal trespass in a place of residence and theft - magistrate imposed a period of 20 months imprisonment with a non-parole period of 15 months - whether the sentence was manifestly excessive - whether the magistrate erred in declining to suspend the sentence. Held: appellant had a long list of antecedents, including five convictions for similar trespass offences and ten convictions of theft - magistrate gave careful consideration to the pre-sentence report and the appellant's recent attempts to rehabilitate - sentence was well within the range available to the magistrate - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 134(1) and 170(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Delphin (2001) 79 SASR 429 , applied.

FOSTER v POLICE
[2008] SASC 291
Magistrates Appeal
Kelly J:
Introduction

The appellant appeals against a sentence imposed in the Mount Gambier Magistrates Court for an offence of serious criminal trespass in a place of residence contrary to Section 170(1) of the Criminal Law Consolidation Act 1935 and theft contrary to Section 134(1) of the Act.
The appellant pleaded guilty to both offences and the learned magistrate imposed one sentence under the provisions of Section 18A of the Criminal Law (Sentencing) Act 1988 of twenty months imprisonment with a non-parole period of fifteen months.
The notice of appeal contains one ground of appeal that the sentence is manifestly excessive. At the hearing of the appeal, while not abandoning the complaint that the head sentence and non-parole period were manifestly excessive, counsel for the appellant directed most of his submissions to the failure of the magistrate to suspend the sentence.
While admitting that the appellant had quite an appalling antecedent history, counsel for the appellant submitted that the magistrate had erred in the exercise of the sentencing discretion by failing to give adequate weight to the appellant’s attempts to rehabilitate in recent years, particularly after moving to South Australia from Victoria. It was submitted that since that time the appellant had completed a methadone program, and he had ceased to use illicit drugs which was the major cause of his offending in the past. It was also submitted that he had pleaded guilty at an early stage and in circumstances where the magistrate had accepted that it might have been difficult for the prosecution to prove the offence.
It is well established that this court may only interfere with a discretionary decision on appeal if the appellant has demonstrated that the magistrate acted upon a wrong principle, mistook the facts, took into account irrelevant or extraneous considerations, or failed to take into account relevant considerations in arriving at the decision.
In addition, if, notwithstanding that a particular error is not identifiable, the decision of the magistrate is so unreasonable or unjust as to indicate that the decision must have been affected by error of some kind, the court may interfere.
With those principles in mind I turn to the issues on appeal.
Was the penalty imposed manifestly excessive?
The maximum penalty for an offence of serious criminal trespass in a place of residence is fifteen years imprisonment. The maximum penalty for the offence of theft is ten years imprisonment.
In R v Delphin (2001) 79 SASR 429 the Full Court considered the question of the penalties to be imposed on persons convicted of serious criminal trespass in a place of residence and other like offences and provided some helpful guidance to sentencing courts.
The Court said at 440:
In the circumstances now prevailing, it would seem that in the ordinary case of a single serious criminal trespass in a place of residence, where the intention upon entry is larceny generally, a penalty for a first offence must now be in the order of 20-24 months where a plea of guilty is involved, with serious consideration being given to suspension in the case of a first offender.
The Court went on to say that where a person has previous convictions for like offences the penalty imposed would likely be higher. Those principles are relevant to the disposition of this appeal.
The appellant is almost 40 years old. He has what can only be described as an appalling criminal record including five convictions for burglary, ten convictions for larceny or theft, one conviction for robbery, one conviction for attempting to obtain financial advantage by deception and three convictions for attempted theft or attempted theft of a motor vehicle. In addition the appellant also has numerous convictions for drug offences and other behavioural and traffic matters. He has been imprisoned for substantial periods of time on numerous occasions.
The circumstances of the offending on this occasion were serious. On 26 February 2008 the appellant broke into a house and stole about $550 worth of cash from the owner’s wallet. The owner left the house that day at around 1.00pm and when he returned home at 10.20pm that night a flyscreen on a front window had been removed and the cash was gone.
The appellant knew the owner of the house and had previously been inside his home. He was observed removing the bathroom window of the house at about 7.00pm and was seen a short time later walking out of the owner’s driveway holding a bottle or something in his right hand.
The magistrate accepted that the prosecution might have had difficulty with proving the offence and chose to give the appellant a discount of approximately one third on the head sentence in respect of the early plea and his cooperation with the authorities.
The magistrate had the benefit of a very thorough pre-sentence report, to which he obviously had regard. It is difficult to understand the submission that he overlooked the appellant’s more recent attempts to rehabilitate in light of that comprehensive report which detailed those efforts and the appellant’s relapse into alcohol abuse. The fact is that his continued alcohol abuse was a substantial contributing factor to the current offending. The appellant himself acknowledged that this alcohol abuse is a serious issue which he needs to address.
In light of the circumstances and the appellant’s background generally, I do not consider that a head sentence of twenty months imprisonment, reduced from a starting point of thirty months, could be described as manifestly excessive. In fact in the circumstances of this offending the penalty could be described as merciful. It is true that the non-parole period is a relatively high proportion of the head sentence. However, given the fact that the appellant has had numerous opportunities in the past to comply with the terms of bonds and parole, it is not surprising that the magistrate imposed a non-parole period representing three quarters of the head sentence. In my view both the head sentence and the non-parole period were well within the sentencing range available to the magistrate.
For these reasons the appeal is dismissed.