FOWERAKER v Police

[2004] SASC 228

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

FOWERAKER v POLICE

Judgment of The Honourable Justice Gray

29 July 2004

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INTERPRETATION ACTS AND CLAUSES

Appeal against sentence by Magistrate - Appellant charged with common assault, larceny and driving offences - Appellant appeals against conviction for common assualt and four counts of driving while disqualified and sentence of nine months imprisonment - Appellant submitted sentence manifestly excessive and that magistrate failed to backdate sentence and take into account time already spent in custody - Appeal allowed - Sentence imposed by Magistrate set aside - Appellant resentenced to 15 months imprisonment given serious nature of offending and criminal antecedents - Sentence backdated pursuant to section 30(2)(b) of the Sentencing Act.

Criminal Law Consolidation Act 1935 (SA) s 39(1), s 91, s 137(1); Australian Road Rules r 20, r 266; Motor Vehicle Act 1959 (SA) s 91; Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 30(2), s 32, referred to.
R v Pahuja (No 2) (1989) 50 SASR 551; R v Nguyen (2002) 84 SASR 190; R v Lane (1990) 53 SASR 480; Frank v Police (2000) 77 SASR 273; R v McHugh (1985) 1 NSWLR 588; Venning v Police [2001] SASC 406, considered.

FOWERAKER v POLICE
[2004] SASC 228

Magistrates Appeal

1. GRAY J:                This is an appeal against sentence.

2. On 30 June 2004 the appeal was allowed and the sentence imposed by the magistrate set aside.  The appellant was re-sentenced to imprisonment for 15 months back dated to 17 September 2003.  A non parole period of nine months and two weeks was fixed resulting in the appellant’s immediate entitlement to apply for parole.  The reasons for these orders follow.

3. The appellant was charged with:

   -common assault on a person other than a family member[1] and dishonestly taking property without the owner’s consent.[2]  This offending took place on 12 September 2003 at a supermarket at Valley View.  The value of the property involved in the offending totalled $9.20.

   -two counts of driving whilst disqualified, which took place on 10 and 29 August 2003. [3]

   -driving whilst disqualified,[4] exceeding the speed limit[5] and failing to ensure a child was wearing a seat belt.[6]  This offending occurred at Adelaide on 6 September 2003.

   -driving a motor vehicle whilst disqualified[7] and a breach of a condition of a bail agreement.[8]  This offending took place at Northfield on 17 September 2003.

   [1] An offence under section 39(1) Criminal Law Consolidation Act 1935 (SA)

   [2] An offence under section 137(1) Criminal Law Consolidation Act1935 (SA)

   [3] An offence under section 91 of the Motor Vehicles Act 1959 (SA)

   [4] An offence under section 91 of the Motor Vehicles Act 1959 (SA)

   [5] Contrary to Rule 20 of the Australian Road Rules.

   [6] Contrary to Rules 266(1) and 266(3) of the Australian Road Rules.

   [7] An offence under section 91 of the Motor Vehicles Act 1959 (SA)

   [8] An offence under section 17 of the Bail Act 1985 (SA)

4. The appellant pleaded guilty to all charges on 29 January 2004.

   Approach of the Magistrate

5. In respect of the 12 September 2003 common assault charge and the driving whilst under disqualification offences of 10 and 29 August 2003 and 6 and 17 September 2003 the magistrate recorded convictions and sentenced the appellant to nine months imprisonment.  This penalty is the subject of the present appeal.

6. In respect of the remaining offences of dishonestly taking property without the owner’s consent, exceeding the speed limit, failing to ensure a child was wearing a seat belt and breach of bail convictions were recorded but no further penalty was imposed.  No appeal has been lodged with respect to these orders.

7. The magistrate also had before him an application to enforce a bond relating to a breach of a suspended sentence bond entered into by the appellant on 15 July 2003.  The magistrate revoked the suspension and ordered that the appellant serve the sentence of six weeks imprisonment.  He ordered that this sentence be served cumulatively with the sentence of nine months imprisonment.

8. When sentencing the appellant the magistrate took into account the appellant’s pleas of guilty.  The magistrate also noted that the appellant had been in custody since 17 September 2003 and had cooperated in the preparation of a presentence report.

9. The magistrate considered the circumstances of the 12 September 2003 assault to be serious.  After being confronted by the proprietor for stealing items from the supermarket, the appellant left his vehicle and punched the proprietor in the face.  The proprietor suffered facial injuries including a black eye, sore cheek and an injured kneecap.  His victim impact statement indicated that this assault has caused ongoing anxiety.  The magistrate observed:

   As I say I give this man full credit for his frankness because it is just illustrative of this man’s need to understand that if he wants to engage in drugs, that is his choice but when it impacts on other people then it is the community’s concern and the community must give a clear and unambiguous message.  This victim is undertaking a public service and duty to the community in providing food and other like products to the community.  There is no suggestion that he was acting improperly in approaching the defendant.  The victim certainly didn’t warrant the [appellant’s] violence on him and it is no excuse for the [appellant] to be under the influence of illicit substances.

10. The magistrate was also concerned that the driving offences occurred after the appellant had been ordered by the court not to drive and had his licence disqualified.  He observed:

    It is regrettable that this young man is not really coming to terms with his responsibility and that is evident by his disregard of the orders of the court and frequently driving under disqualification which can only be described as consumatious (sic).

11. The magistrate concluded that the serious nature of the offending called for an immediate custodial sentence.

    Issues on Appeal

12. On appeal, an application for extension of time to lodge the appeal was sought by the appellant.  This application was not opposed by counsel for the Crown and was granted.

13. As earlier observed, the penalty the subject of the appeal was the sentence of nine months imprisonment and the convictions relating to the charge of assault and the four charges of driving under disqualification.  The convictions imposed in respect of the other charges were not the subject of appeal.  However, the magistrate’s approach to the breach of the suspended sentence bond was in question.

14. It was submitted by counsel for the appellant that the sentence imposed by the magistrate was manifestly excessive.  It was said that the magistrate failed to backdate the sentence of imprisonment and as a result failed to adequately take into account the time the appellant had already spent in custody.

15. Pursuant to section 30(2)(b) of the Criminal Law (Sentencing) Act 1988 (SA) the court has the power to order that a sentence of imprisonment be backdated to the date the offender was admitted into custody. That section relevantly provides:

    (2)Where a defendant has been in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may—

    …

    (b)direct that the sentence be taken to have commenced on the day on which the defendant was taken into custody.

16. Pursuant to section 30(2)(a) a court can have regard to time spent in custody awaiting sentence by reducing the period of imprisonment imposed, however it is appropriate in the present case to backdate the sentence to ensure that the true extent of the penalty is known[9] and that the opportunity for supervised parole be available.

    [9] R v Pahuja (No 2) (1989) 50 SASR 551; R v Nguyen (2002) 84 SASR 190

17. In R v Nguyen[10] the Court of Criminal Appeal considered the use of section 30(2)(b) when sentencing persons who had spent time in custody awaiting sentence.  It was observed that it is preferable to take into account time spent in custody by backdating the commencement of the sentence to be imposed, rather than to apply an artificial reduction to the head sentence or non parole period.  Applying a reduction rather than backdating the sentence could create a false impression to community and the defendant about the length of the head sentence and the general standards of sentencing appropriate for the offending behaviour.  It was said that explicit credit should be given for time spent in custody prior to sentence by ordering that the sentence of imprisonment commence from the date of pre-sentence custody.  Such an approach allows the defendant and the community to know the real sentence that has been imposed and acknowledges time already spent in custody.  These observations are supported the decisions of R v Pahuja (No 2),[11] R v Lane,[12] Frank v Police,[13] R v McHugh[14] and Venning v Police.[15]

    [10] R v Nguyen (2002) 84 SASR 190 at 201-204 per Gray J with whom Perry J agreed on this point at 194

    [11] R v Pahuja (No 2) 50 SASR 551 at 563

    [12] R v Lane (1990) 53 SASR 480 at 481

    [13] Frank v Police (2000) 77 SASR 273 at 278

    [14] R v McHugh (1985) 1 NSWLR 588 at 590

    [15] Venning v Police [2001] SASC 406 at [19] – [27]

18. Section 32 of the Sentencing Act provides that a sentencing judge must also have regard to time spent in custody when fixing a non parole period.  Section 32 relevantly provides:

    (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

    ….

    (7)        In fixing or extending a non-parole period, the court--

    (a)must, if the person in respect of whom the non-parole period is to be fixed or extended is in prison or a training centre serving a sentence of imprisonment or detention, take into account the period already served; and

    …

    (10)       For the purposes of this section--

    (a) a court that orders that a suspended sentence of imprisonment be carried into effect will be taken to have sentenced the person to whom the order relates to imprisonment;

    …

19. Counsel for the Crown agreed that in the circumstances of the present case, the magistrate ought to have ordered that the term of imprisonment imposed commence on 17 September 2003, the date the appellant was first taken into custody.  It was said that a young man in the appellant’s circumstances would clearly benefit from supervision upon release.  Counsel for the Crown accepted that the magistrate did not appear to have addressed the issue of rehabilitation or the need for supervision on release.

20. In the case of a young offender rehabilitation should be a primary concern.  By imposing a penalty without allowing for ongoing supervision on release, the magistrate failed to adequately address this concern.  The sentence imposed should have allowed for ongoing supervision of the appellant.  Further, the magistrate should have proceeded pursuant to section 30(2)(b) and backdated the sentence to take into account the time the appellant had spent in custody.  In the circumstances it is appropriate that the appeal be allowed and the appellant be re-sentenced.

    Resentencing

    Personal Antecedents

21. A pre-sentence report dated 26 February 2004 recorded a number of relevant matters concerning the appellant’s personal antecedents.

22. The appellant attended a number of schools and was either expelled, suspended or requested to leave due to his disruptive behaviour.  He completed year 10 but left after a period of suspension to commence work as a roof plumber.  The appellant experienced no difficulty in obtaining work in this field.

23. The appellant has a five year old son.  He described himself as a good father who was “pro-active and supportive”.  The appellant is committed to maintaining an amicable relationship with his son’s mother.

24. The appellant has an extensive history of illicit drug abuse.  He used marijuana from the age of twelve and by the age of fifteen was regularly using amphetamines.  He acknowledged using heroin occasionally.  The appellant claimed that he was spending approximately $400 a week on illicit drugs, mainly amphetamines, and often resorted to crime to finance this habit.

25. The appellant participated in a methadone program when aged 19 years, but returned to amphetamine use after six months.  He attended and completed the Alcohol and Other Drug Brief Intervention Program on 2 May 2001.  The appellant stated he has not used illicit substances since being taking into custody for the present offending.

26. The appellant was under the influence of amphetamines at the time of the 12 September 2003 offending.  It was reported in the pre-sentence report that:

    [The appellant] stated that he attended a store to purchase some food and although he initially had intentions to pay for these goods decided to ‘just walk out’.  In relation to being confronted by the employee of this store the [appellant] reported that after proceeding to start his vehicle and drive away he believed the employee of the store hit his car.  The [appellant] then informed me that ‘he lost it’, stopped the car and confronted this person.

    When questioned in relation to whether his current offence is part of an established pattern of offending the [appellant] stated that he would often take property from department stores without paying and that this served to finance his chronic substance misuse.  He further stated that on all occasions he was under the influence of amphetamines and that this provided him with a sense of apathy in rationalising the impact of his offending of others.

    …

    In discussing barriers to change the [appellant] highlighted a range of issues that although he does not believe are insurmountable to his ability to change he does acknowledge that this would be challenging for him.  This includes his reluctance to address his substance abuse.  The defendant stated that he enjoys the effects of illicit drugs and particularly amphetamines.  He further stated that he did not see ‘drugs’ as the issues but did acknowledge that his problems are borne from his inability to legally finance his ‘drug use’ and his choice to commit crime.

27. The pre-sentence report concluded that the appellant’s offending appeared to be connected to his chronic substance abuse.  It was said that he would be ‘ideally placed to receive drug counselling’ whilst in custody, but unfortunately such counselling facilities were not yet available.  The appellant had indicated a willingness to undertake a course of supervision and continues to enjoy strong family support, particularly from his mother.

    Criminal Antecedents

28. The appellant has a long history of offending.  He was imprisoned for four weeks on 18 June 2003 for an offence of larceny.  In August 1999 the appellant was convicted for assault and sentenced to 10 days imprisonment.  The appellant received a suspended sentence of 18 months for assaults occurring in January 2002.  The appellant was convicted of assault and larceny and imprisoned for three months in April 2002.

29. The appellant has also been convicted of a number of offences relating to possession of controlled substances.  Other offending has included receiving, breach of bond, breach of bail agreements and numerous driving offences.

    Conclusion

30. The appellant’s offending in the present case, particularly the assault occurring on 12 September 2003, was serious.  The magistrate was correct to impose an immediate term of imprisonment.  The appellant’s long history of offending called for a penalty that addressed personal deterrence as well as protection to the community.  Rehabilitation of the appellant was also an important concern.  Both counsel agreed that an appropriate sentence would address the need for supervision of the appellant for a lengthy period.

31. Given the seriousness of the offending, it was appropriate to sentence the appellant to a period of imprisonment of 15 months. Regard was had to the nine months and two weeks the appellant spent in custody awaiting sentence. Pursuant to section 30(2)(b) of the Sentencing Act, the 15 months imprisonment was backdated to 17 September 2003.  A non parole period of nine months and two weeks was fixed.  The appellant was eligible to apply for parole as of 30 June 2004.  Should parole be granted, consideration could be had to the appellant’s supervision, including the need for ongoing assistance in regard to drug and anger management problems.