FOX v Police - [2005] SASC 208

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Criminal)
FOX v POLICE
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Vanstone)
9 June 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
Appeal against sentence in Magistrates Court of South Australia - whether sentence manifestly excessive - whether Magistrate appropriately reduced sentence for time spent in custody - whether Magistrate erred in failing to specify reduction for time in custody and pleas - appeal dismissed.
Criminal Law (Sentencing) Act 1988, s 30, s 31, s 32, s 58; Correctional Services Act 1982 s 75, referred to.
R v Delphin (2001) 79 SASR 429, discussed.
Kennett v R, Unreported, Court of Criminal Appeal, 18 February 1992, Judgment No.S3273; Rowe v Police [2003] SASC 160; R v Davey [2004] SASC 339; R v Pahuja (No.2) (1989) 50 SASR 511; Lee-Doyle v Police [2001] SASC 292; Venning v Police (2001) 216 LSJS 342; R v Nguyen (2002) 84 SASR 190; R v McHugh (1985) 1 NSWLR 588; Wong v The Queen (2001) 207 CLR 584; R v Harris; R v Simmonds (1992) 59 SASR 300; R v Powell (2001) 81 SASR 9; R v Place (2002) 81 SASR 395, considered.

FOX v POLICE
[2005] SASC 208
Full Court: Doyle CJ, Bleby and Vanstone JJ

DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Vanstone J.
In particular, I agree with her that it was open to the Magistrate, having revoked the suspension of the sentence of 18 months’ imprisonment imposed in February 2003, to direct that that sentence be served cumulatively upon the single sentence of two years’ imprisonment that the Magistrate imposed for the offences of August and December 2003, and for the breach of bail in May 2004.
Power to take that course is conferred by s 58(4)(c) of the Criminal Law (Sentencing) Act 1988 (SA). Having done that, it was open to the Magistrate to review and to extend the non-parole period fixed in relation to the suspended sentence, exercising the power conferred by s 32(1) of the Criminal Law (Sentencing) Act.
The advantage of taking that approach is that the Magistrate could have directed that the head sentence and the non-parole period be taken to have commenced when the appellant was taken into custody: see s 30(2) of the Criminal Law (Sentencing) Act.
But the Magistrate was not obliged to proceed in this manner. It was not an error to proceed as the Magistrate did.
That leaves the question of whether the sentence imposed by the Magistrate is manifestly excessive.
It would have been better if the Magistrate had identified the amount of reduction in the sentence that he made for the pleas of guilty, and the extent to which he took into account the time already spent in custody. But the reasons of Vanstone J demonstrate that, making appropriate assumptions, while the head sentence that the Magistrate imposed is a severe one, it is not so high as to be manifestly excessive. I have also had the advantage of considering the reasons of Bleby J. I am not persuaded that the circumstances of the offences for which the Magistrate had to sentence the appellant are such that the sentence he imposed was manifestly excessive. Nor do I agree that the aggregation of the previously suspended sentence and the new sentence amounts to a crushing sentence. The offences themselves might be regarded as being at the lower end of the scale, but their seriousness is increased by the fact of repetition of criminal conduct of a kind previously engaged in, and by the fact the offences were committed while the appellant was subject to a bond to be of good behaviour. They are significant aggravating circumstances.
It is for those reasons that I would dismiss the appeal.
BLEBY J: Vanstone J has set out the material facts relating to this appeal. I will not repeat them.
I agree that it would have been better if the Magistrate had indicated the credit given for the appellant’s plea of guilty, but I also agree that it is not an error of law to fail to do so.
As to the date from which a sentence should commence to run, in some circumstances, the combined effect of s 31(2) of the Criminal Law (Sentencing) Act 1988 and s 75 of the Correctional Services Act 1982 may be to require a sentence which is subject to a period of unexpired parole at the time of committing a subsequent offence to be served from the date of sentence for the subsequent offence, thereby rendering it impossible for the Court to backdate the sentence for the subsequent offence, even if time has been served in custody in respect of that offence prior to sentence.[1]
[1] Kennett v R, Unreported, Court of Criminal Appeal, 18 February 1992 Judgment No. S3273; Rowe v Police, Unreported, Sulan J, 6 June 2003 [2003] SASC 160; R v Davey, Unreported, Court of Criminal Appeal, 29 October 2004 [2004] SASC 339
However, this Court has held that, where possible, it is preferable, for a number of reasons, to determine that a sentence takes effect from the date on which the prisoner is taken into custody for that offence.[2] Nevertheless, the Court has undoubted power to direct that the sentence commence, where this is possible, either from the date of the prisoner being taken into custody for the offence or from the date of sentencing.[3]
[2] R v Pahuja(No.2) (1989) 50 SASR 511 at 563; Lee-Doyle v Police [2001] SASC 292; Venning v Police (2001) 216 LSJS 342 at 340-341; R v Nguyen (2002) 84 SASR 190. See also R v McHugh (1985) 1 NSWLR 588 at 590
[3] Section 30(2) Criminal Law (Sentencing) Act 1988
It cannot be said that choice of one or another course, by itself, constitutes an appealable error, provided that the total period spent or to be spent in custody, subject to any period of parole, in respect of the offence for which the prisoner is being sentenced is adequately reflected in the sentence.
I agree that in this case the Magistrate was prevented from backdating the suspended sentence by virtue of s 58(4)(b) of the Criminal Law (Sentencing) Act. The application for revocation of the suspension was not made until the day of sentence. However, I also agree that the Magistrate had the option, on this occasion, of directing that the suspended sentence be served cumulatively upon the sentence imposed for the breaching offences.[4] The Magistrate could therefore have backdated the latter sentence to the date on which the appellant was taken into custody. It may have been preferable if he did, but it was not an error to fail to do so. The Magistrate’s sentencing remarks indicate that he was conscious of the need to give credit for the period spent in custody in fixing that sentence and in setting the fresh non-parole period for the combined sentences.
[4] Section 58(4)(c) Criminal Law (Sentencing) Act 1988
The only question on appeal is therefore whether the sentence so fixed, cumulative as it was upon the suspended sentence, and the new non-parole period were manifestly excessive.
The sentence imposed for the four breaching offences was a period of two years imprisonment. The relevant period in custody which must be added to that period in order to ascertain the true period of imprisonment attributable to these offences was 5½ months, making a total notional head sentence of 2 years 5½ months imprisonment, after taking into account the pleas of guilty. The total notional period of imprisonment, including the period of the previously suspended sentence, was therefore 3 years 11½ months or 47½ months. The non‑parole period must be calculated in similar fashion, resulting in an effective non-parole period of 20½ months.
The previously suspended sentence of 18 months followed pleas of guilty to one count of non-aggravated serious criminal trespass (non-residential premises) and associated theft and one count of non-aggravated serious criminal trespass (residential premises) and associated theft. Those were the appellant’s first offences. They were committed to support a drug habit. The Court was not informed of the value of the goods taken on those occasions. However, the fact that the sentence was suspended says something about the degree of seriousness of the offending.
The aggregate of the maximum penalties for the earlier offences is significantly higher than the aggregate for the breaching offences. Nevertheless, it appears that the offending was of a similar nature on each occasion. Without more, the appellant could have expected a penalty of at least 18 months imprisonment for the second round of offending. The question is whether it justified a period of almost 2½ years.
The appellant was aged 33 at the time of the breaching offences. Apart from the previous serious criminal trespass and associated offences, he had been convicted of two driving offences, both arising out of the same driving episode, for which he was fined, and one other count of larceny committed after the serious criminal trespass offences but before he was sentenced for those, and for which he was discharged without penalty.
On the one hand, the offending on this occasion in one case involved stealing a bicycle to the value of about $1,000 from a carport by entering the premises through a closed gate. The serious criminal trespass involved breaking into a shed by removing a padlock and taking various items valued at about $2,200. The breach of bail involved failing to continue to reside at the bailed address. He told the police that he had moved about two weeks earlier but did not notify the Court “as he had been busy at work”. In submissions to the Magistrates Court his counsel said that he was forced to move because the person with whom he was staying gave up the premises so he could travel overseas. It was submitted that the failure to notify the Court came about “because he did not know what to do in this situation”.
As I have mentioned, the dishonesty offences were of a similar type to those which he had previously committed, but against the appellant, they all occurred during the period of the good behaviour bond which had resulted in the suspension of the earlier sentence. He required a custodial sentence for this offending, and the Magistrate had no real alternative to requiring him to serve the previously suspended sentence.
On the other hand, he stole the bicycle not for its value but so he could use it. Full restitution of the bicycle and admissions were made at the time of his arrest. The goods stolen in association with the non-aggravated serious criminal trespass were stolen in order that the appellant might benefit his partner and dependent child. Although he had previously been gainfully employed, it appears that he was unemployed at that time. Full restitution of the goods stolen and admissions were made at the time of his arrest.
To all offences he pleaded guilty at the earliest opportunity. The appellant’s earlier offending had been driven by addiction to drugs. He had previously been gainfully employed for most of the time and had taken steps to overcome his drug addiction. He had good prospects of rehabilitation as evidenced by his work history and steps he had taken to cease using drugs.
This Court in R v Delphin[5] had occasion to consider the appropriate range of sentences for a first offence of serious criminal trespass committed in residential premises. The Court[6] said:
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. Relevant factors will include the nature and circumstances of the trespass and the impact of the entry on the victim. Where other and more specific intentions of an offender can be allowed, that will be important in assessing the gravity of the offence. Such an intention may range from petty theft to larceny of very value property, from minor assault to killing or to a range of possible sexual offences. The more heinous intention will be likely to give rise to a heavier sentence.
[5] (2001) 79 SASR 429
[6] Debelle, Bleby and Wicks JJ at 440-441, [47]
The Court expressly refrained from suggesting any standard or tariff for serious criminal trespass committed in non-residential premises. One can assume that it would generally be lower, as the maximum penalty for that offence is two thirds that of serious criminal trespass committed in residential premises.
One of the penalties in fact imposed and affirmed on appeal in R v Delphin was 2 years imprisonment on a plea of guilty for serious criminal trespass in residential premises, for which the maximum penalty is 15 years imprisonment. The appellant in that case entered a locked unoccupied house by breaking a window alongside the front door. The other penalty complained of was for a separate offence of aggravated serious criminal trespass in unoccupied residential premises. Entry was gained by removing a flyscreen from an open window, the aggravation consisting of committing the offence in company. The maximum penalty for that offence is imprisonment for life. The penalty imposed by this Court, after allowing for the plea of guilty, was 2 years and 6 months imprisonment. Both offences were committed to satisfy a heroin addiction, from which there was some evidence that the appellant was trying to escape. He was the same age as the present appellant, but had a 15 year history of burglary, theft and other offences of dishonesty. He was subject to a good behaviour bond when he committed these offences.
Judged by the maximum penalties applicable to the several offences, the offending in R v Delphin was much more serious than in this case. However, I readily acknowledge, as was recognised in Delphin[7] that that is not necessarily the governing factor. I also acknowledge that this was not the present appellant’s first offence and that in R v Delphin the appellant was only charged with the offences of serious criminal trespass and not with the larceny which accompanied them. Nevertheless, the process of instinctive synthesis[8] which I consider to be appropriate to this type of comparison, suggests that there should be some sense of proportion between the penalties imposed in R v Delphin and what is appropriate here.
[7] Ibid at 444 [69]
[8] Wong v The Queen (2001) 207 CLR 584 at 611-612
Approached from another angle, allowing for a discount of (say) 25% for the plea of guilty and co-operation with the Police, the notional starting point of the Magistrate was about 3 years and 4 months imprisonment – a very high starting point for offending of this nature.
In all the circumstances I consider that what was almost a 2½ year sentence of imprisonment, not suspended, was manifestly excessive, given the earlier suspended sentence of 18 months, the nature and circumstances of this offending and the antecedents and personal circumstances of the appellant. Looked at from another point of view, the aggregation of the previously suspended sentence of 18 months and a further almost 2½ years is a crushing sentence in the circumstances for a series of offending which must be regarded as being at the lower end of the scale.
As I would favour the re-sentencing of the appellant, I would do so in a manner which is permitted by the Criminal Law (Sentencing) Act and would fix a sentence to operate from the date on which the appellant was taken into custody for the breaching offences, namely 13 May 2004. For those offences I would fix a head sentence of 20 months imprisonment. I would direct that the previously suspended sentence of 18 months imprisonment be served cumulatively upon the sentence of 20 months, making a total head sentence of 3 years and 2 months.
Given the total head sentence fixed by the Magistrate, the notional non‑parole period of about 20½ months was generous. It reflected the appellant’s prospects of rehabilitation. Given the aggregate sentence which I think should now be served, I would fix a non-parole period of one year and 5 months to commence also from 13 May 2004.
I would therefore allow the appeal for the purpose of substituting the head sentence which I think is appropriate and for fixing the non-parole period which I have indicated.
VANSTONE J: This is an appeal from a decision of a Judge of this Court dismissing an appeal against a sentence imposed by a Magistrate for dishonesty offences, together with orders made by him in respect of a suspended sentence bond which the offences breached. The Judge granted leave to appeal to the Full Court. The only question of principle which arises is the arrangement and time of commencement of the sentences, which include a suspended sentence to be carried into effect.
The appellant came before the Magistrate in relation to a number of charges occurring on different dates. Ultimately, he pleaded guilty to theft of a bicycle on 20 August 2003, serious criminal trespass and theft on 31 December 2003 and breach of bail on 13 May 2004. On the last-mentioned date he went into custody and he has remained there. He was 33 years of age at the time of these offences.
All four offences were in breach of a two year bond associated with a suspended sentence of 18 months imprisonment with a non-parole period of 12 months. That was imposed on 13 February 2003 in respect of two counts of serious criminal trespass and two associated counts of theft.
The Magistrate estreated the bond and revoked the suspension of the sentence, ordering that it be carried into effect. For the breaching offences he fixed one sentence of two years imprisonment to commence at the expiration of the previously suspended sentence. He fixed a non-parole period of 15 months and ordered that the sentences start on the day of sentence.
In his grounds of appeal to this Court the appellant complains that his appeal should have been upheld on the basis that the sentence was manifestly excessive, that the learned Magistrate failed to make appropriate reduction for the time spent in custody and failed to make it clear that he had made the appropriate deduction in relation to the head sentence as well as the non-parole period, that he failed to identify the deductions made to reflect the pleas of guilty and failed in his remarks to adequately disclose the process by which he arrived at the sentences.
The remarks of the learned Magistrate were brief, but that is not to criticise them. Among other things, he remarked upon the fact that the major breaching offence was similar to the offences for which the appellant had been given a suspended sentence and the fact that only months had elapsed since that sentence was imposed. He referred to the appellant’s difficulties with alcohol and other drugs and their relevance to the offending. He remarked on the improvement in the appellant’s appearance since the time when he was remanded in custody after arrest. He noted the pleas of guilty and referred to them as “early pleas after negotiations were completed”. That reference must be taken to indicate that he intended to give generous credit for them. On three occasions during his remarks the Magistrate noted that the appellant had been in custody awaiting sentence for over five months. The last such reference was immediately prior to the fixing of a non-parole period.
It is true that the learned Magistrate did not stipulate how much credit he gave for the pleas of guilty. It would have been better had he done so, as this Court has emphasised in a number of cases including R v Harris; R v Simmonds (1992) 59 SASR 300. On the other hand, failure to do so is not an error of law: R v Powell (2001) 81 SASR 9; R v Place (2002) 81 SASR 395, 425. Whether or not the reduction is identified, the question on appeal remains whether the sentence is manifestly excessive.

Where a defendant has spent time in custody prior to sentence, that period should, generally speaking, be taken into account in fixing the sentence. There may be exceptions to that general principle, for example, where the period in custody is not referable to the offence for which penalty is being imposed. Section 30(2) Criminal Law (Sentencing) Act 1988 (the “Act”) allows the Court to reflect time in custody either by making an appropriate reduction to the term of the sentence imposed, or by directing that it be taken to have commenced at the commencement of custody. As this Court observed in R v Nguyen (2002) 84 SASR 190 there are sound reasons of policy in favour of directing that a sentence be “backdated” wherever that is permitted.
In the appellant’s case the usual situation was slightly complicated by reason of the operation of s 58 of the Act, which deals with orders that a court may make in the case of a breach of bond. Section 58(4)(b) relevantly provides:
(4) Where a court revokes the suspension of a sentence of imprisonment, the court –
(a) …
(b) may direct that the time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
Since the proceedings for breach of the appellant’s bond were not instituted until the very day of his sentence, there was no time in custody “pending determination of the proceedings for breach” and so the Magistrate could not give such a direction. Had the Magistrate chosen to order that the appellant first serve the sentence for the breaching offences, then s 30(2)(b) could have been utilised, so that the Magistrate could have ordered that the sentence be taken to have commenced on the day of the defendant’s arrest and remand. It seems to me that course would have been open to the Magistrate notwithstanding some slight suggested tension between such a course and the application of s 32(1) of the Act.
Section 32 deals with non-parole periods. It relevantly provides 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
…
The tension is said to arise from the requirement in subparagraph (b) to review and extend the existing non-parole period. That expression seems to contemplate that at any given moment a person will have, at most, one non-parole period and, if so, that the only process to which it can be subjected is a review and extension. However, against that, s 58(4)(c) plainly allows the suspended sentence to be made “cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer”. In that situation, if the “other sentence” already has a non-parole period, then necessarily the non-parole period associated with the suspended sentence will be a second one, and an order will have to be made to effect its addition to, or merger with, the first. For that reason I consider that there is no impediment, in this situation, to ordering that the sentence for the breaching offences be served first.
However, in this instance the Magistrate chose to make a reduction from the sentence he imposed, rather than to utilise that machinery. In the circumstances there can be no criticism of him for taking that course, although generally speaking it is a less satisfactory one. But the question remains whether he was then required to specify exactly how that reduction was effected. In my view he was not. Nor in my view was he obliged to approach the matter in a mathematical way. If one assumes that the Magistrate’s starting point for the more recent offences was three years and that a 20 per cent discount was allowed for the pleas and five months credit was given for time in custody, all of which seems logical, then the question, again, is was that manifestly excessive?
As I mentioned there were three separate occasions of offending. The first offence was the theft of a bicycle worth about $1,000 which the victim had left in the carport of his unit at about 6.00 pm. It was missing the next morning. The only available access to that area was through a closed gate. This could not be seen as a minor example of that offence. The serious criminal trespass offence committed about four months later consisted of a breaking into a locked shed at a person’s home. Property was removed. The maximum penalty for each of serious criminal trespass (non-residential building) and theft is ten years imprisonment. The fourth offence was a breach of bail offence. The appellant left the address at which he was bound to live without permission of the court. Two weeks later he had done nothing to rectify the situation.
It can be readily admitted that none of these offences are at the higher end of their respective scales, but on the other hand they were three separate incursions into criminal conduct and they were all committed in breach of the bond, the first offence occurring only about six months after entry into that bond. If the starting point was indeed a single sentence of approximately three years, and from that the reductions which I have assumed were made, then although such a head sentence for these offences might be thought to be severe, in my view it cannot be said to be outside the range of penalties available to the learned Magistrate. The non-parole period was very moderate. I agree with the Judge under appeal that error has not been demonstrated.
Whilst I am mindful of the heavy workload of magistrates and also conscious of the long experience of many of them in sentencing matters, it is important that all efforts are made to provide a degree of transparency in the way in which sentences are arrived at, at least in respect of allowance for pleas of guilty and time spent in custody. Revealing the process can be of assistance to the sentencing court itself, as well as to an appellate court. Moreover it demonstrates to the defendant that matters having a marked impact on his penalty have not been overlooked.
I would dismiss the appeal.