FOX v Police
[2005] SASC 40
•9 February 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FOX v POLICE
Judgment of The Honourable Justice Anderson
9 February 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - RECOGNISANCES - BREACH
Appellant pleaded guilty to two counts of theft, one count of non-aggravated serious criminal trespass, and failing to comply with a suspended sentence bond - suspended sentence was in relation to offences of non-aggravated serious criminal trespass (non-residential), non-aggravated serious criminal trespass (residential), and two counts of larceny - the appellant had been sentenced to a period of eighteen months imprisonment with a non-parole period of twelve months but the sentence was suspended for two years with a bond of $100 - the learned sentencing Magistrate estreated the $100 and ordered the appellant to serve his term of eighteen months - in relation to the offences other than the breach of bond the Magistrate imposed a single penalty of two years imprisonment and ordered that the sentence be served at the expiration of the eighteen month term for the breach of bond - appellant submitted that the sentence was manifestly excessive and that his pleas of guilty and time already spent in custody were not sufficiently taken into account - held: no error on the part of the Magistrate demonstrated - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s58(4)(b), referred to.
R v Place (2002) 81 SASR 395; Wessling v Police (2004) 88 SASR 57; Police v Saunders (2003) 229 LSJS 97; R v Delphin (2001) 79 SASR 429; R v Smith (2002) 224 LSJS 134; Dinsdale v The Queen (2000) 202 CLR 321; R v Proom (2003) 85 SASR 120, considered.
FOX v POLICE
[2005] SASC 40Magistrates Appeal
ANDERSON J This is an appeal from a Magistrate who sentenced the appellant on 28 October 2004. On that day the appellant pleaded guilty to the theft of a bicycle valued at about $1,000, a non-aggravated serious criminal trespass (non-residential premises), the theft of other property valued at about $2,200, and failing to comply with a bail agreement.
The offences were in breach of a suspended sentence bond which the appellant had entered into on 13 February 2003.
That suspended sentence was in relation to offences of non-aggravated serious criminal trespass (non-residential premises), non-aggravated serious criminal trespass (residential premises), and two counts of larceny.
The appellant had been sentenced to a period of eighteen months imprisonment with a non-parole period of twelve months, but that sentence was suspended for two years with a bond in the amount of $100.
In dealing with the breach of the bond, the learned Magistrate estreated the $100 and ordered that the appellant serve his term of eighteen months imprisonment commencing on 28 October 2004.
In relation to the offences other than the breach of the bond, the learned Magistrate imposed a single penalty of two years imprisonment, ordered that that sentence be served at the expiration of the eighteen-month term for the breach of bond. The head sentence was a total of three years and six months, and the learned Magistrate then imposed a non-parole period of fifteen months.
In this appeal the appellant says that he was not given sufficient credit for his pleas of guilty, that the time he had already spent in custody was not sufficiently taken into account, that the term of imprisonment was manifestly excessive, and that insufficient weight was given to his personal circumstances.
It is correct that the learned Magistrate did not indicate the extent of the discount he allowed for the appellant’s plea of guilty. However, the learned Magistrate, in his reasons, mentioned the pleas and indicated that he was taking the pleas into account. I must assume that he did, and even though it would be preferable had the actual amount of discount been identified, the failure to so identify the exact discount is, in my view, not such an error which warrants interference by this court. See R v Place (2002) 81 SASR 395 at 425, and Wessling v Police (2004) 88 SASR 57 at 61.
The appellant had been taken into custody on 13 May 2004, and complained that the Magistrate failed to reduce the sentence of imprisonment by taking into account the time spent in custody. Likewise, a complaint was made that the learned Magistrate failed to backdate the sentence to 13 May 2004. Section 58(4)(b) of the Criminal Law (Sentencing) Act 1988 (SA) allows the time spent in custody pending the determination of a breach of a suspended sentence to be counted as part of the suspended sentence. See Police v Saunders (2003) 229 LSJS 97.
It should be borne in mind that it is only time spent in custody since the initiation of the breach proceedings which can be counted, and not any earlier time spent in custody whilst on remand.
The learned Magistrate clearly had the time spent in custody in mind when he was considering his sentencing options, and mentioned that fact on no less than three occasions. I think the Magistrate clearly did take the time spent in custody into account in deciding upon the term of imprisonment.
The appellant complains also that the sentence is manifestly excessive. The maximum penalties for each of the offences committed by the appellant are ten years imprisonment for theft, ten years imprisonment for non-aggravated serious criminal trespass, and a fine of $10,000 or two years imprisonment for the breach of the bail agreement.
It is submitted by the respondent that in the case of an offender committing a first offence of serious criminal trespass (residential premises), the penalty should be twenty to twenty-four months imprisonment, but with consideration given to a suspension. However, where there is a prior history, obviously a higher penalty can be expected. See R v Delphin (2001) 79 SASR 429 at 440, and R v Smith (2002) 224 LSJS 134.
It is my view that the learned sentencing Magistrate had to take into account, and did properly take into account, the fact that the offences were committed whilst the appellant was subject to a suspended sentence. Moreover, the serious criminal trespass was not a first offence for the appellant, and the details of the offences show three episodes of criminal activity between 8 August 2003 and 13 May 2004.
In my opinion it has not been shown that the learned Magistrate acted upon an erroneous principle, took into account extraneous or irrelevant matters, acted upon some mistaken fact, or failed to take into account some material consideration in the terms of Dinsdale v The Queen (2000) 202 CLR 321 at 324 per Gleeson CJ and Hayne J.
Finally, in relation to the personal circumstances of the appellant, it was submitted that the Magistrate failed to take into account the appellant’s drug-addiction. It was correctly submitted by the respondent, in my view, that a serious criminal offence is not mitigated when the offence is committed to feed a drug habit. See generally R v Proom (2003) 85 SASR 120.
In all other respects, it seems to me that the Magistrate took all of the relevant matters into account. The Magistrate clearly took into account that the appellant had taken advantage of his suspended sentence bond, committing further offences only six months after the bond had been imposed.
In all of the circumstances, therefore, I would dismiss the appeal.