Gabriel v Police - [2009] SASC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GABRIEL v POLICE
[2009] SASC 74
Judgment of The Honourable Justice Gray
25 March 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT
Appeal against sentence of Magistrate - defendant and appellant charged with serious criminal trespass of non-residential premises and two counts of dishonestly taking property without owner's consent - defendant pleaded guilty to each of the offences in Mount Gambier Magistrates Court - defendant convicted on each count - one term of imprisonment of one year and two months imposed pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) - term ordered to be served cumulatively upon unexpired balance of period of parole of two years, four months and sixteen days - total sentence to be served was three years, six months and sixteen years - non-parole period in respect of this total period was fixed at three years commencing from 23 September 2008 – defendant aged 32 years and has lengthy history of dishonesty offending and illicit drug use – whether Magistrate made factual misapprehensions affecting defendant’s criminal culpability - whether Magistrate failed to have regard to defendant’s prospects of rehabilitation – whether sentence manifestly excessive.
Held: appeal allowed - sentence manifestly excessive – sentence imposed by Magistrate did not reflect the defendant’s prospects of rehabilitation – defendant re-sentenced.
Criminal Law (Sentencing) Act 1988 (SA), referred to.

GABRIEL v POLICE
[2009] SASC 74
Magistrates Appeal
GRAY J

This is an appeal against sentence.
Kevin Andrew Gabriel, the defendant and appellant, was charged with the offence of serious criminal trespass of non-residential premises and two counts of dishonestly taking property without the owner’s consent. He pleaded guilty to each of the offences in the Mount Gambier Magistrates Court. He was convicted on each count. Pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), one penalty was imposed as a term of imprisonment of one year and two months.
This term of imprisonment was ordered to be served cumulatively upon the unexpired balance of a period of parole of two years, four months and 16 days. As a consequence, the total sentence to be served was a period of three years, six months and 16 days. A non-parole period in respect of this total period was fixed at three years commencing from 23 September 2008.
The circumstances of the offending were that on the evening of Wednesday 13 August 2008 the defendant entered an open rear door of a hair and beauty salon in Mount Gambier and stole a handbag and contents. The defendant then used keys from the stolen handbag to unlock a vehicle parked nearby. He then stole a wallet containing $400 in cash from the vehicle. These circumstances gave rise to the three charged offences with pleas of guilty were entered.
The defendant is aged 32 years and as the Magistrate pointed out in his remarks the defendant has a history of offending for dishonesty. His offending commenced as a child in about 1990 and continued as an adult. This offending has led to terms of imprisonment initially suspended but subsequently terms of imprisonment with immediate effect. Most recently in March 2007 the defendant was sentenced in the District Court in respect of aggravated serious criminal trespass and dishonesty offending to imprisonment for two years and six months. This offending occurred at a time when the defendant was on parole and the sentence was expressed to be a cumulative on the unexpired period of the previous sentence. This led to a total sentence of four years and six months with a non-parole period of two years. The defendant when released on parole in respect of that sentence committed the present offending.
The defendant sought to explain his criminal conduct through his drug addiction but the Magistrate addressed this issue in the following terms:
I accept that whilst released on parole and under supervision even that supervision could not prevent you from relapsing into offending. You say you were associating with those who use drugs and so were tempted back into using it. These were voluntary decisions that you made, to associate with those persons, and it was a decision that you made to use drugs. When submissions are made about people committing offences for the purpose of funding their addiction, which is the case here, it poses some difficult sentencing considerations. I am mindful of the remarks of the Chief Justice, Justice John Doyle, made in R v Proom. If I may, I’ll paraphrase some of the remarks that the Chief Justice has made and I adopt them here at times without necessarily directly quoting them.
“Society is entitled to be protected from people who commit crimes to fund their addiction. Addiction to drugs when it leads to crime is not an excuse for the purpose of sentencing. Addiction is not a factor that necessarily calls for a lesser sentence than would otherwise be appropriate. Addiction may be a relevant circumstance. For example, it may explain that you are not a professional criminal or don’t make calculated decisions to offend”.
I do not see that the examples cited are relevant considerations here. You have a long history of criminal offending. While I am not prepared to adopt the description of “professional criminal”, you are a repeat offender, and for dishonesty. I am asked to consider addiction in the context that it might be relevant in terms of the prospects of rehabilitation, but it also might, as in my view does, indicate those prospects are not good. I do not consider your addiction in this case relevant to rehabilitation. I am satisfied that your prospects of rehabilitation are in fact poor. Your addiction does have relevance generally in the context of all of the circumstances of the case, but the principles cited I should generally rely upon. I accept generally for example that in some cases addiction might diminish an individual’s moral culpability and I accept that, but you, like other addicts, do not lose your ability to make choices, and you remain legally liable for your conduct. Moral culpability is not the only relevant consideration. As the Chief Justice has also said deterrence through punishment might be a blunt remedy, but courts must do whatever they can to deter addicts from using crime to sustain their addiction.
The Magistrate then addressed the sentence to be imposed and remarked:
Whilst these are all separate and quite distinct offences, it seems to me they are a part of one continuous course of conduct and I ought to consider the use of section 18A to impose one penalty. I do not see the need to separately articulate the period of imprisonment for each individual offence in these circumstances. You are not a first offender; you have a long history of dishonesty. There is a need to impose penalties of a personal deterrent nature and also, naturally, provide a public deterrent. I impose a section 18A penalty of 20 months imprisonment. I will reduce it to 15 months by reason of your guilty plea. No good reason has been argued for, nor in my view established, in relation to suspension. I will reduce the term of imprisonment further to 14 months by reason of allowance for the time spent in custody in relation to these matters. A penalty of imprisonment of 1 year and 2 months will be the formal order of the court. I have to now add to that the agreed unexpired portion of your parole period. Having done so that provides a head sentence of 3 years 6 months and 16 days.
I have to now consider an effective non-parole period. In my view you have a poor record, you have an extraordinarily poor response to parole. This is your second breach of a parole period. You have poor prospects in terms of rehabilitation, particularly in relation to continued drug use and offending. I impose a non-parole period of 3 years.
On appeal it was submitted that the Magistrate had materially misunderstood relevant facts, and proceeded to sentence the defendant on a false basis. It was further complained that the Magistrate had failed to have adequate regard to the defendant’s prospects of rehabilitation. It was finally submitted that, in any event, the head sentence imposed for the present offending and the non-parole period fixed in respect of the total head sentence was manifestly excessive.
The Magistrate commenced his sentencing remarks by summarising the circumstances of the offending in the following terms:
Mr Gabriel, you have pleaded guilty to Serious Criminal Trespass (Non-Residential) and two counts of theft of property. You broke into the rear of commercial premises, going through a locked door, and stole somebody’s handbag. It seems you must have had this person under some kind of observation. Having taken the handbag you were able to take the keys from the handbag and then identify her vehicle and break into her vehicle steal $400 in cash. I do not consider this merely a simple opportunistic offence. It seems there was some level forethought and planning.
The parties agreed that the defendant had entered the commercial premises through an unlocked rear door. It was the defendant’s submission that the door was ajar, and, although this could not be confirmed by counsel for the Police, it was not the subject of challenge. What is clear, however, is that the defendant did not break into commercial premises through a locked door. Counsel for the defendant also submitted that the offence was a spur of the moment offence and not premeditated. However, counsel conceded that the decision to use the key found in the handbag to break into the vehicle did involve some level of forethought and planning.
In the circumstances the Magistrate’s misapprehension of fact about the defendant entering through a locked door was a material misapprehension. It suggested a greater degree of criminal culpability than was the case. As a result, it is necessary for this Court to reconsider itself the appropriate sentence to be imposed on the defendant, and if the view is taken that a different sentence should be imposed, to re-sentence the defendant.
It is to be observed that the Magistrate imposed a very substantial non-parole period against the total head sentence of three years, six months and 16 days he fixed a non-parole period of three years. That represents a non-parole period of about 85 per cent of the head sentence. In my view this was manifestly excessive component of the sentence, one that was crushing and one that did not have proper regard to the defendant’s prospects for rehabilitation.
On the appeal, a thorough and helpful psychological report was tendered by consent. This material confirms that given appropriate assistance, the defendant does have prospects for rehabilitation. Those prospects are supported by the fact that he is aged in his early thirties and has a determination to stay out of trouble. He has a partner and with her three young children, has demonstrated a willingness to work. He has expressed a determination to address his drug addiction. These factors indicate prospects for rehabilitation. This is supported by his early acknowledgement of guilt with respect to the present offending.
The psychologist’s conclusion was that much of Mr Gabriel’s criminal offending was due to his involvement with drugs, which, in turn, related to his upbringing and his exposure to drugs as a young teenager. In particular, the psychologist concluded:
In order to reduce Mr Gabriel’s risk of reoffending in the future there were two main areas of focus required. First, Mr Gabriel’s drug use; the addictive nature of his drugs of choice (morphine, heroin, amphetamines) created a negative cycle where he craved the drugs in order to feel ‘good’, then had impaired judgement and impulsive behaviours when he wanted to ‘get on’. Second, his criminal thinking style. Mr Gabriel was quite prone to cognitive distortions and minimisations which allowed him to proceed with offending behaviour. For example, when he needed to ‘get on’ he would think about opportunities to steal, minimise the impact on the victim/s, believe he could hide the truth from his family and fool himself that it would be the last time. These areas would need intensive therapeutic intervention in order to reduce his risk of future re-offending. Mr Gabriel had not had access to this kind of therapeutic intervention in the past; the programs he had completed through Correctional Services (which I have seen and evaluated) are woefully inadequate and it is no surprise that Mr Gabriel had not benefited from them.
In my opinion, Mr Gabriel was not exposed in childhood to normal problem solving skills (practical and emotional) or self-esteem which comes from a loving family. He had not yet had an opportunity to learn these skills through professional intervention. It appeared that he may not have been open to such intervention in the past. However, in my assessment he was in the early stages of criminal career burnout, which would provide adequate motivation and necessary basis for behaviour change. Mr Gabriel required either 1:1 or group based treatment with a trained psychologist to address the issues outlined above. Ideally, he would benefit most from a referral to the “Intensive AOD Program” run through the psychology department in Correctional Services. This is a 20-session program targeting cognitive development, offence cycle mapping, problem solving skills and emotional management. Without access to or participation in such programs Mr Gabriel’s risk of re-offending was in my opinion in the moderate to high range. Successful participation in the programs outlined would significantly reduce his risk of re-offending to the low-moderate range.
In the circumstances the defendant should be re-sentenced by this Court. It is appropriate to impose a sentence utilising my powers under section 18A of the Criminal Law (Sentencing) Act, by imposing a term of imprisonment of eleven months. In arriving at this sentence, I have made a reduction of 25 per cent on account of his pleas of guilty, contrition and remorse. A further reduction of one month has been made on account of time spent in custody. This sentence is to be served cumulatively on the unexpired portion of the non-parole period of two years, four months and 16 days. This leads to a total term of imprisonment to be served of three years, three months and 16 days. I fix a non-parole period of two years. The sentence is to be backdated to 23 September 2008, the date on which the Magistrate sentenced the defendant. The orders of the Court are as follows:
·Appeal allowed
·Sentence imposed by the Magistrate set aside.
·The defendant is re-sentenced in respect of the offending the subject of the appeal to a term of imprisonment of eleven months. That sentence is to be served cumulatively on the unexpired portion of the earlier sentence of two years, four months and 16 days. Accordingly, the total sentence of imprisonment to be served by the defendant is three years, three months and 16 days. I fix a non-parole period of two years in respect of that total sentence. The sentence is to take effect from 23 September 2008. The defendant will become eligible for parole on 23 September 2010.
·I direct that a copy of the report of Mr Broomhall, psychologist, be forwarded to the Correctional Services Department, to the intent that the recommendations for treatment there outlined be provided if possible to the defendant.